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THE    THEORY 


OF 


OUR   NATIONAL   EXISTENCE, 


AS    SHOWN    BY 


THE  ACTION   OF  THE   GOVERNMENT  OF  THE 
UNITED   STATES   SINCE   1861. 


JOHN   C.    HUJ^  LL.D., 


AUTHOR  OF   "THE   LAWpj^^REEDOM  AND  BONDAGE  IN 
THE  UNITED  STATES." 


"Etenini  si  incertam  vocem  det  tuba,  quis  parabit  se  ad  bellum?  " 

Epistola  Pauli  ad  Corinthios,  prima:  cap.  xiv.  vers.  viii. 


BOSTON: 
LITTLE,    BROWN,    AND    COMPANY. 

1881. 


Copyright,  ISSl, 
By  John  C.  Hurd. 


University  Press: 
John  Wilson  and  Son,  Cambridge. 


DEDICATED    IN    HOMAGE 


SOVEREIGN": 

WHOEVER    HE,     SHE,     OR     THEY, 
MAT   BE. 


INTRODUCTION. 


The  remark  is  attributed  to  Paley  that  it  is  mucli 
harder  to  make  mea  see  a  difficult}'-  than  to  make  them 
understand  the  explanation  of  it.  Mr.  Walter  Bagehot, 
a  writer  on  the  English  Constitution,  in  referring  to  this  as 
a  shrewd  observation  adds:  "  The  key  to  the  difficulties  of 
most  discussed  and  unsettled  questions  is  commonly 
in  their  undiscussed  parts.  They  are  like  the  background 
of  a  picture,  which  looks  obvious,  easy,  just  what  any  one 
might  have  painted ;  but  which  in  fact  sets  the  figures  in 
their  right  position,  chastens  them,  and  makes  them  what 
they  are." 

Mr.  Bagehot  applies  this  to  the  difficulty  of  under- 
standing parliamentary  government,  especially  in  Eng- 
land. I  think  the  observation  is  equally  applicable  to  the 
discussion  of  political  questions  in  America.  The  disputes 
which  have  been  going  on  here,  ever  since  the  formation 
of  a  government  independent  in  respect  to  the  rest  of  the 
world,  may  be  due  to  our  failure  to  bear  in  mind  some 
circumstances  attending  all  political  existence,  which 
must  precede,  in  the  order  of  being,  those  which  we 
ordinarily  consider  both  fundamental  and  peculiar  to  our- 
selves. 

If  this  is  the  case  with  us,  I  should  state  the  inquiry  of 
which  the  discussion  had  been  omitted  as  this :  How  do 
we  know  our  political  existence  to  be  a  fact  ? 


VI  INTRODUCTION. 

Dr.  Brownson,  in  his  "  American  Republic  "  (p.  2),  has 
perhaps  expressed  the  same  thought  more  elaborately 
when  he  said  :  "Among  nations,  no  one  has  more  need 
of  full  knowledge  of  itself  than  the  United  States,  and  no 
one  has  hitherto  had  less.  It  has  hardly  had  a  distinct  con- 
sciousness of  its  own  national  existence,  and  has  lived  the 
unreflective  life  of  the  child,  with  no  severe  trial,  till  the 
recent  rebellion,  to  throw  it  back  on  itself  and  compel 
it  to  reflect  on  its  own  constitution,  its  own  separate  exist- 
ence, individuality,  tendencies,  and  end." 

It  appears  to  me  that  all  our  political  writers,  without 
exception,  have  started  with  the  idea  that  we  have  no 
business  to  have  any  self-consciousness,  or  to  ask  ourselves 
such  a  question  as  the  above.  They  seem  to  assume  that 
in  this  country,  if  in  no  other,  the  existence  of  political 
facts  is  not  determined  by  the  observing  intellect  employ- 
ing the  bodily  senses,  but  by  knowledge  of  certain  princi- 
ples of  morals.  They  seem  to  take  for  granted  that  here  at 
least,  if  nowhere  else  in  the  world,  not  only  does  that 
political  fact  exist  which  ought  to  exist,  but  it  exists 
simply  because  it  ought  to  exist ;  or  that  all  they  have  to 
do  to  prove  its  existence  is  to  show  that,  if  it  existed,  it 
would  agree  with  certain  principles  of  morals. 

During  the  sixteenth  and  seventeenth  centuries  a  form 
of  political  instruction  was  popular  which  was  followed  by 
Sir  Thomas  More  in  his  "  Utopia,"  by  Harrington  in  his 
"  Oceana,"  and  by  other  English  writers  in  works  less  well 
known.  These  were  avowedly  inventions,  fictions,  describ- 
ing, as  if  they  were  facts,  what  the  writers  thought  would 
be  facts  if  facts  were  what  they  ought  to  be.  The  method 
of  these  writers  differed  from  that  of  Plato,  in  his  dia- 


INTRODUCTION".  Vll 

logue  on  The  Republic,  only  in  this,  —  that  Socrates  and 
his  friends  were  there  imagined  as  discussing  things  as 
they  wished  they  might  be ;  while  these  writers  spoke  of 
their  fictitious  republics  as  actually  existing. 

Nearly  all  descriptions  of  American  political  institutions 
seem  to  me  to  have  partaken  something  of  the  character 
of  these  Utopian  dreams.  The  conception  of  a  political 
philosophy  as  peculiar  to  the  inhabitants  of  this  country, 
.and  providentially  designed  for  them  in  advance,  has  not 
been  confined  to  any  particular  party  or  parties,  school  or 
schools,  or  to  the  residents  of  any  one  part  of  the  country 
more  than  to  those  of  another  part.  All  American  publi- 
cists may  be  seen,  more  or  less  plainly,  endeavoring  to 
prove  the  existence  of  matter  of  political  fact  in  this 
country  by  arguing  that  such  or  such  a  state  of  things 
ought  to  be  the   existing  fact  in  this    country. 

The  cause  of  this  may  be  traced  further  back  than  the 
Revolution  of  1776.  It  may  be  said  to  have  been  a  natural 
outgrowth  of  the  circumstances  attending  the  colonization 
by  Englishmen  of  vacant  territory  under  the  political 
dominion  of  a  sovereign  separated  from  them  by  an  ocean 
not  then  so  traversable  as  to-day.  They  had  left  England 
at  the  time  when,  as  Hume  says,  plans  of  imaginary 
republics,  like  those  of  Harrington  and  More,  were  daily 
subjects  of  debate  and  conversation  ;  and,  under  the  cir- 
cumstances in  which  they  found  themselves,  the  reason- 
ings of  the  individual  colonists  on  the  abstract  right  or 
propriety  of  all  political  arrangements  seemed  not  only 
to  precede  the  exercise  of  any  visible  political  authority, 
but  also  to  be  the  cause  of  its  recognition.  This  aspect  of 
political  existence  was  heightened  by  the  effect  on  personal 


Vlll  INTRODUCTION. 

character  of  the  motives  inspiring  the  early  colonists  of 
New  England,  and  of  those  ideas  of  the  relation  of  gov- 
ernment to  religion  which  we  associate  with  the  term 
"  Puritan." 

This  habit  of  thought  on  questions  of  political  existence 
received  fresh  strength  during  the  eighteenth  century  from 
the  influence,  both  in  Europe  and  America,  of  contempo- 
rary French  authors,  whose  theoretical  method  was  essen- 
tially the  same.  It  had  general  ascendancy  up  to  the 
period  of  the  Revolution  of  1776,  when  it  became  formu- 
lated in  the  Declaration  of  Independence.  For  the  words 
of  that  instrument  assert,  substantially,  that  the  thirteen 
colonies  are,  that  is,  are  as  matter  of  fact,  States  indepen- 
dent of  Great  Britain  and  the  rest  of  the  world,  because 
there  is  some  moral  law  in  existence  by  which  they  ought 
to  be  so. 

I  have  said  that  this  method  of  demonstrating  political 
existence  has  continued  to  be  illustrated  by  American 
statesmen  and  political  writers  generally,  since  the  Revo- 
lution, not  being  characteristic  of  one  class  or  section 
more  than  another  ;  but  for  my  present  purpose,  in  intro- 
ducing this  essay,  it  is  chiefly  noticeable  as  it  appears  in 
the  writings  of  those  who  have  more  especially  represented 
opinion  in  the  Northern  States. 

It  appears  to  me  that  Kent  and  Story,  with  others  who 
have  recently  succeeded  to  their  position  as  teachers  of 
public  law,  to  say  nothing  of  many  jurists  on  the  bench, 
have  written  and  spoken  of  our  actual  government  as  if 
it  was  their  duty,  above  all  things  else,  to  exhibit  it  as 
agreeable  to  some  principles  assumed  by  agreement 
between  themselves  and  their  readers  to  be  just,  and  to 


INTRODUCTION".  IX 

have  thought  that  no  political  source  of  public  law  could 
be  recognized  as  an  existing  fact,  unless  its  accordance 
with  what  they  personally  would  regard  as  goodness  of 
political  design  could  be  demonstrated. 

These  writers,  as  a  class,  seem  to  ignore  the  fact  that, 
in  every  country  in  the  world,  there  must  be  somebody 
in  existence  whose  measure  of  right  everybody  else  must 
accept  as  the  rule  of  action  before  there  can  be  any  pub- 
lic law  at  all ;  or  they  conduct  their  demonstration  as 
if  they  had  shown  that  there  was  actually  an  exception, 
as  to  this  general  condition,  in  the  case  of  this  country. 

So  far  as  they  have  recognized  this  condition,  in  respect 
to  this  country,  it  has  been  by  putting  a  hypothesis  in 
the  place  of  the  fact.  A  fact  is  known  by  the  observing 
intellect,  aided  by  the  bodily  senses,  as  existing,  whether 
in  the  judgment  of  the  moral  sense  it  ought  to  exist  or  not. 
The  hypothesis  in  this  case  is  framed  to  agree  with  the 
framer's  a  'priori  notions  of  political  right. 

As  a  consequence  of  this  method  of  treating  the  subject 
by  our  professed  guides  and  instructors,  an  idea  appears  in 
all  our  political  controversies,  as  conducted  in  represen- 
tative assemblies,  on  platforms,  or  by  printed  publications, 
that  there  is  no  fact  of  a  political  nature,  as  distinguished 
from  a  legal  nature,  to  be  ascertained  at  all ;  or  that  we 
must  regard  as  a  fact  that  which  is  only  an  opinion,  sup- 
ported by  some  moral  considerations.  And,  as  political 
obligation  is  not  distinguished  in  idea  from  obligations 
enforced  only  by  the  individual  conscience,  so,  in  close 
connection  with  this  sort  of  philosophy,  is  the  practical 
result  that  the  obligation  of  law  is  referred  to  the  consent 
of  the  individual. 


X  •  INTRODUCTION. 

Americans  have,  indeed,  the  reputation  of  being  a  more 
law-abiding  people  than  the  populations  of  other  countries. 
This  may  be  well  deserved,  if  law  is  regarded  only  as 
a  rule  corresponding  more  or  less  closely  with  ordinaiy 
ideas  of  justice.  Equality  of  condition  and  extension  of 
average  intellectual  education  have  accustomed  a  propor- 
tionately larger  number  to  recognize  law,  in  its  moral 
aspect,  and  to  appreciate  the  general  advantage  of  its 
being  obeyed. 

But  when  the  question  is  of  obedience  without  refer- 
ence to  its  ajDproval  by  the  moral  sense  of  those  to  whom 
the  rule  applies,  that  is,  when  law  is  presented  as  the  rule 
of  action  given  by  some  political  superior,  there  is  here,  as 
in  no  other  country  in  the  world,  a  feeling  that,  for  us, 
laws  exist  without  reference  to  the  will  of  any  such  supe- 
rior, and  therefore  cannot  have  binding  force  for  any  such 
reason. 

The  consequence  is  that  Americans  are  almost  destitute 
of  the  ideas  of  loyalty  and  allegiance,  and  do  not  conceive 
of  rebellion,  treason,  and  civil  war  as  they  are  appre- 
hended in  other  countries. 

The  civil  war  of  1861  has  always  been,  for  this  reason, 
an  astonishment  and  a  puzzle  to  the  people  of  the  North- 
ern States.  They  looked  upon  the  action  of  the  people 
of  the  Southern  States  as  presenting  only  a  question  of 
morals.  They  have  never  been  able  to  see  that  the  contro- 
versy was  not  about  obligations  under  law,  regarded 
simply  as  a  measure  of  right  and  wrong,  but  was  one 
about  political  obligation  in  reference  to  a  fact ;  and  that 
this  was  an  entirely  distinct  matter. 

It  is  in  view  of  these  considerations  that  I  here  make  an 


INTEODUCTION.  XI 

admission  which  may  seem  a  singular  introduction  to 
these  pages,  — that  is,  that  the  title  selected  is  actually 
a  misnomer. 

It  is  not  unlikely  that  on  glancing  over  a  few  pages  the 
reader  would  make  the  observation  for  himself.  The  name 
"  theory  "  suggests  the  treatment  of  a  subject,  by  starting 
from  some  principles,  assumed  or  admitted,  with  the  pur- 
pose of  arriving  at  some  conclusion  presented  as  a  deduc- 
tion from  those  principles.  A  theory  so  framed,  by 
reasoning  a  priori,  is,  however,  precisely  the  opposite  in  its 
nature  to  that  treatment  of  the  subject  which  I  have 
herein  attempted. 

It  is  indeed  not  a  theory,  but  a  fact,  which  is  here  the 
object  of  the  investigation.  The  term  "  theory  "  may,  how- 
ever, be  conveniently  used  to  designate  a  generalization  from 
a  number  of  facts  which  are  the  particular  instances  for  the 
generalization.  An  induction  from  such  instances,  rea- 
soning a  posteriori,  gives  a  result  which,  though  essen- 
tially a  fact,  may  for  convenience  be  called  a  theory.  So 
it  is  common  to  speak  of  the  mutual  attraction  existing 
between  all  material  substances,  which  is  commonly  called 
the  attraction  of  gravitation,  as  a  theory ;  meaning  a  fact 
described  by  generalizing  a  number  of  particular  instances, 
such  as  the  fall  of  an  apple  to  the  earth. 

It  is  a  theory  as  identified  with  a  fact,  not  a  theory  as 
distinguished  from  a  fact.  It  is  only  in  this  sense  that  I 
call  national  existence  a  theory.  I  have  conducted  ni}'- 
inquiry  on  the  supposition  that  the  existence  of  a  nation 
as  a  political  being  may  be  known  by  generalizing  certain 
actual  events,  regarded  as  exhibitions  of  political  force  or 
energy,  in  the  hands  of   some  actually  existing   human 


xn  IlsTEODUCTIOX. 

beings ;  which  events  are  to  be  accepted  as  facts,  because 
nobody  can  help  accepting  them  as  facts. 

With  such  a  conception  of  the  proposed  investigation,  it 
will  be  seen  that  I  have  no  political  philosophy  or  doctrines 
of  political  ethics  to  set  before  the  reader  as  axioms  to  be 
accepted  in  determining  the  existence  or  non-existence 
of  the  facts,  even  as  political  facts.  Indeed,  the  negation  of 
the  necessity  for  such  doctrines  may  be  regarded  as  the 
only  axiom  on  which  the  investigation  is  founded. 

But,  in  view  of  what  has  already  been  said  as  to  the 
prevailing  method  of  considering  political  subjects  in  this 
country,  I  anticipate  that  there  will  be  some  persons 
whose  first  objection  to  any  conclusion  here  presented 
will  be  founded  on  a  rejection  of  such  an  axiom.  There 
may  be  some  who  do  not  propose  to  recognize  as  political 
facts  any  facts  which  do  not  conform  to  certain  a  priori 
doctrines,  or  who  will  insist  that  the  acceptance  of  the 
political  fact  must  depend  on  its  conformity  to  certain  pre- 
existing laws,  principles,  or  ideas  assumed  to  be  just  or 
in  accordance  with  certain  principles  of  justice. 

I  shall  not  dispute  with  such  readers  whether  anything 
we  call  a  fact  can  be  settled  by  any  such  method.  All 
that  is  material  for  me  to  say  about  it  is  that  such  a 
method  is  not  the  method  here  followed.  The  only  argu- 
ment I  propose  to  give  to  show  the  folly  of  such  a  method 
is  to  produce  the  results  of  a  method  entirely  opposite  ; 
as  is  herein  attempted. 

If  the  arrangement  of  the  material  forming  the  bulk  of 
this  essay  may  be  justly  criticised  for  want  of  system 
or  of  logical  continuity,  I  still  claim  that  the  purpose  to 
proceed  by  way  of  induction  from  a  variety  of  particu- 


INTRODUCTION.  XIU 

lar  instances  or  examples  may  give  sufficient  unity  to  the 
whole,  in  spite  of  such  a  lack  of  formal  connection 
between  the  several  parts. 

As  further  explaining  the  method,  or  want  of  method,  of 
the  whole,  it  may  be  excusable  for  me  to  mention  that  by 
far  the  larger  part  of  the  material  has  been  put  together 
since  the  first  and  second  chapters  were  in  type,  in  the 
summer  of  1879,  when  it  was  proposed  to  make  of  the 
whole  only  a  pamphlet  of  one  hundred  and  odd  pages,  from 
matter  which  had  originally  been  prepared  as  a  review  of 
the  political  doctrines  announced  in  one  or  two  official 
papers,  and  in  some  judicial  opinions  then  recently  pub- 
lished. 

As  the  object  of  inquiry  presented  itself  more  distinctly 
as  a  political  fact,  its  relation  to  judicial  opinion,  and  to  all 
that  class  of  opinion  usually  called  "authority,"  devel- 
oped in  a  different  light.  It  was  apparent  that  the  ques- 
tion of  the  existence  of  such  a  fact  could  not  be  a  legal 
one ;  that  is,  that  it  could  not  be  settled  by  the  judicial 
function,  nor  by  the  judgment  of  any  person  in  official  sta- 
tion of  any  sort.  But  it  was  seen,  at  the  same  time,  that 
judgments  of  courts  of  law,  if  they  are  actually  carried 
into  execution,  are  acts  of  government,  which  must  be 
accepted  as  indications  of  the  existence  of  the  political 
fact  that  somebody  actually  exercises  power  over  others. 

Viewed  in  this  light,  the  cases  decided  by  the  courts 
stand  in  the  same  relation  to  the  political  truth  which  is 
the  object  of  search,  as  do  the  acts  of  officers  of  other  depart- 
ments of  a  government.  All  these,  as  events  which  have 
actually  taken  place,  are  more  material  for  indicating  the 
location  of  political  force  than  any  juristical  opinions  can  be. 


XIV  INTEODXJCTION". 

From  this  point  of  view  the  action  of  the  several  depart- 
ments of  the  Government  is  equal  in  political  significance. 
Each  act  of  government  has  political  value,  and  the  larger 
the  number  of  the  particular  instances,  and  the  greater  the 
variety,  as  far  as  the  nature  of  tlie  inquir}^  admits,  the 
surer  should  be  the  basis  for  the  induction  of  the  polit- 
ical truth.  It  will  be  seen  that  the  later  portions  of  this 
essay  are  based  more  distinctly  upon  this  idea. 

It  is  to  be  borne  in  mind  that  the  principle  followed  in 
this  inquiry  is  to  accept  evidence  from  any  possible  source, 
but  to  pay  no  regard  to  any  opinions  as  "  authority  "  for 
settling  the  question  of  fact  considered.  There  is  no 
appeal  made  to  great  names,  as  if  the  opinion  of  2a\j  man 
or  men,  however  wise  or  prominent,  could  decide  the  ex- 
istence of  a  fact,  even  of  a  fact  occurring  in  their  own 
day,  to  say  nothing  of  facts  which  took  place  before  they 
were  born.  The  statements  of  persons  living  or  dead  are 
quoted,  so  far  as  they  are  quoted  at  all,  as  testi7nony  on  the 
question  of  fact,  —  a  question  of  history,  so  far  as  it  is  past 
fact  in  distinction  from  present  fact.  But,  being  only  tes- 
timony, all  such  statements  are  freely  compared  with 
evidence  from  every  other  source. 

I  think  it  may  be  said  with  truth  that  the  desultory  and 
informal  method  of  inquiry  here  followed  is  in  accordance 
with  the  actual  process  by  which  all  political  existence  is 
apprehended  by  the  bulk  of  those  who  are  concerned 
to  ascertain  it.  It  may  be  that  it  is  not  the  manner  of  the 
scholar's  private  study,  nor  that  of  the  professor's  chair. 
It  is  not  asking  for  knowledge  ex  cathedra.  But  it  is 
in  this  manner  that  the  mass  of  mankind  at  all  times 
and  in  all  countries   become  aware  of   the  existence  of 


INTEODUCTION.  XV 

those  political  facts  with  which  they  must  agree  to  live, 
if  they  choose  to  live  at  all.  It  is  the  way  in  which  polit- 
ical authority  becomes  known  to  those  who  move  in  the  " 
ordinary  walks  of  life,  whether  they  are  concerned  with 
that  authority  in  the  every-day  relations  of  peaceful  soci- 
ety, or  in  the  crises  of  war,  foreign  or  domestic.  In  any 
case  the  knowledge  is  acquired  in  the  forum,  on  the 
market-place,  by  the  fireside  or  at  the  tavern,  by  talking 
over  with  other  people  events  which  actually  take  place. 

Let  us  imagine  some  intelligent  traveller  finding  out 
some  country  previously  unknown  to  the  rest  of  the  world : 
whatever  other  objects  he  might  have  in  view,  his  first 
necessity  would  be  to  discover  the  person  or  persons  whose 
will  was  there  obeyed  by  the  mass  of  the  population,  or 
who  held  so  much  power  among  them  that  his  own  life, 
securit}-,  and  liberty  of  action  would  depend  upon  his  or 
their  disposition  towards  himself.  It  might  be  that  the 
traveller  came  with  a  special  purpose  to  learn  the  laws  by 
which  the  action  and  mutual  relations  of  the  inhabitants 
were  regulated.  Whatever  amount  of  verbal  information 
he  might  receive  on  this  point,  or  however  extensive  his 
personal  observations  of  their  manners  and  daily  lives,  he 
would  not  think  that  he  could  affirm  the  existence  of  any 
laws  regulating  their  intercourse  until  he  had  found  out 
some  person  or  persons  whose  actual  force  and  will  could 
be  traced  as  a  cause  securing  obedience  to  such  laws. 

In  making  this  inquiry  the  supposed  traveller  would  re- 
ceive all  statements  on  the  subject  made  in  apparent  good 
faith,  but  he  would  constantly  compare  them  with  any  ex- 
hibition of  actual  force  or  power  which  might  come  under 
his  own  personal  observation.     If  he  should  discover  cer- 


XVI  INTRODUCTION. 

tain  persons,  not  themselves  under  the  command  of  any 
other,  whose  injunctions  were  actually  obeyed  by  all  other 
.persons,  or  who  actually  punished  all  others,  at  their  own 
discretion,  for  disobedience  to  their  injunctions,  and  who, 
wdien  their  power  had  been  resisted  by  force,  had  actually 
overcome  such  resistance  by  their  own  superior  force,  he 
would  conclude  that  the  power  to  maintain  their  will  as 
law  was  actually  in  the  hands  of  such  persons,  whatever 
verbal  information  to  the  contrary  he  might  have  re- 
ceived. 

We  may  imagine  the  supposed  traveller  as  a  modern 
newspaper  correspondent  commissioned  to  report  to  his 
employers,  for  the  public  at  home,  the  character  of  such 
a  newly  discovered  nation.  This  public  at  home  would 
read  his  letters  as  a  ref)ort  on  a  matter  of  fact.  Whatever 
might  be  his  views  of  the  nature  of  government  in  general, 
of  the  rights  of  man  as  a  political  animal,  or  at  whatever 
school  or  college  he  might  have  been  educated  on  these 
points,  this  public  would  not  expect  to  learn  anything 
from  him  on  those  topics.  If,  instead  of  describing  what 
he  actually  saw,  he  should  send  back  his  views  as  to  what 
laws  and  institutions  would  be  beneficial  to  the  country 
he  was  exploring,  or  if  he  should  be  detected  in  repre- 
senting the  state  of  things  there  as  if  it  proved  the  correct- 
ness of  his  own  theories  of  political  existence,  his  employers 
would  let  him  know  that  he  might  benefit  the  public  in 
that  way  as  well  by  staying  at  home,  and  that  it  was  not 
for  any  such  purpose  that  he  was  commissioned  as  a  trav- 
elling correspondent. 

Whatever  might  have  been  the  ideas  on  the  nature  of 
government  in  general  accepted  at  home,  the  supposed  trav- 


INTRODUCTION.  XVU 

eller  would  not  assume  that  such  ideas  were  equally  ac- 
cepted in  the  place  whose  institutions  he  was  to  observe. 
However  secure  or  pleasant  he  might  have  regarded  his 
position  in  a  countr}'-  where  such  ideas  had  been  accepted 
by  the  possessors  of  power,  he  would  not  depend  upon 
such  ideas  as  sufficient  to  protect  his  life,  person,  or  prop- 
erty in  the  strange  land  he  was  exploring.  Even  if  he 
had  sought  the  country  in  question  as  a  political  apostle, 
filled  with  zeal  to  spread  by  persuasion  ideas  which  he 
thought  best  for  the  government  of  all  countries,  he  would 
address  himself  to  finding  out  what  persons  were  so  placed 
that  the  influence  of  such  ideas  depended  on  their  assent 
to  or  their  adoption  of  them,  in  action. 

But  however  ready  he  might  be  to  recognize  the  exer- 
cise of  power  as  a  fact,  the  traveller  would  have  some 
preconceived  notions  as  to  the  nature  of  the  power  whose 
possessors  he  wished  to  identify.  These  notions  would  be 
founded  upon  his  previous  knowledge  of  the  necessary  con- 
ditions of  human  existence.  Whatever  he  might  hear  and 
whatever  he  might  see,  he  would  know  that  it  could  only 
be  human  will  and  human  intelligence  which  could  direct 
the  power  when  manifested  ;  that,  if  it  was  any  power  at 
all,  it  was  the  power  of  human  beings.  The  people  among 
whom  he  sojourned  might  point  to  some  sacred  grove, 
whose  leaves  whispered  to  the  reverent  ear ;  or  lead  him 
to  some  cavern,  in  whose  vapors  a  priest  raved  in  ecstacy  ; 
or  show  him  some  block  of  stone  or  metal,  said  to  be 
fallen  from  the  sky,  which  gave  a  hollow  sound  under- 
stood by  a  privileged  few  ;  and  they  might  assure  him 
that  these  sounds,  utterances,  or  whispers  directed  what 
was  to  be  done  and  what  was  not  to  be  done.     But  what- 


XVlll  INTRODUCTION. 

ever  deference  the  supposed  traveller  might  have  been 
obliged  to  yield  to  similar  pretensions  in  his  own  country, 
he  would,  in  the  strange  land  where  he  came  as  an  ob- 
server, look  to  those  who  served  the  idol,  occupied  the 
cavern,  or  possessed  the  grove  as  the  real  holders  of  the 
power  to  govern. 

Or  the  traveller  might  have  found  a  people  using  a  writ- 
ten language,  who  might  show  him  inscriptions  on  stone, 
brass,  wood,  parchment,  or  paper,  and  tell  him  that  these 
monuments  were  the  rules  by  which  alone  every  person  in 
the  land  acted  or  refrained  from  acting ;  that  these  inscrip- 
tions were  themselves  the  power  he  sought,  and  the  only 
holders  of  the  power.  But  if  the  traveller  came  from  any 
other  country  than  the  United  States  he  would  still  look 
about  for  a  human  agency,  a  human  intellect  interpreting 
the  meaning  of  the  words,  and  a  human  will  and  force  com- 
pelling obedience  to  that  meaning,  and  would  ascribe  the 
authority  of  these  written  monuments  to  those  who  were 
visibly  uncontrolled  in  executing  the  injunction  or  leaving 
it  unexecuted. 

Or  the  traveller  might  be  told  that,  in  that  country  and 
among  that  people,  the  person  whom  he  sought  was  not  to 
be  found,  because  the  force  or  power  of  which,  as  he 
supposed,  some  persons  must  be  possessed,  did  not  there 
exist.  He  might  be  informed  that  in  that  country  every- 
thing that  was  done  or  left  undone  was  so  done  or  left 
undone  by  the  will  or  consent  of  the  several  persons  by 
whom,  as  the  actors,  it  might  be  so  done  or  left  undone. 

This  people  might  say  that,  while  their  written  monu- 
ments described  or  defined  the  relations  of  individuals  to 
each  other,  there  was  no  force  giving  effect  to  these  provi- 


INTllODUCTION.  XlX 

sions,  as  law,  because  the  consent  of  the  individuals  whose 
relations  were  so  described  or  defined  was  sufiicient  to 
maintain  the  existence  of  such  relations. 

The  traveller  might,  at  the  same  time,  observe  persons 
who  were  suffering  penalties  for  transgressing  the  pro- 
visions of  these  laws,  and  some  who,  at  the  instance  of 
others,  had  been  subjected  to  coercion  in  respect  to 
their  relations  to  these  others ;  and  he  might  be  told  that 
these  penalties  were  borne  and  this  coercive  action  took 
place  only  by  the  consent  of  the  individuals  affected  by  them. 

Or  the  traveller,  while  sojourning  among  this  people, 
might  witness  a  war  in  which  millions  of  this  people  had 
risen  in  arms,  with  the  declared  intention  to  nullify  or 
make  void,  as  to  themselves,  the  public  relations  defined 
or  described  by  the  written  monuments,  or  so-called  laws ; 
and  he  might  be  told  that  the  sacrifice  of  life,  disaster,  and 
final  defeat  suffered  by  these  millions,  followed  by  the  un- 
restrained action  of  the  other  party  to  this  war,  were  aa 
illustration  or  evidence  both  of  the  fact  that  all  public  rela- 
tions in  that  country  rested  on  the  consent  of  the  individ- 
uals affected  by  such  relations,  and  of  the  inherent  potency 
of  the  written  monuments  to  maintain  their  own  pro- 
visions ;  and,  moreover,  as  a  proof  of  the  absence  of  any 
such  power-holder  as  he  had  made  the  object  of  his  vain 
inquiry. 

What  opinion  the  supposed  traveller  might  have  of  this 
testimony  would  depend,  perhaps,  very  much  on  the  place 
of  his  nativity.  He  might  at  any  rate  be  able  to  tell  the 
supposed  people  that  they  were  not,  as  they  might  have 
imagined,  the  only  nation  in  the  world  glorying  in  such 
conceptions  of  itself;  that,  to  his  knowledge,  the  people 


XX  INTRODUCTIOX. 

of  the  United  States  of  America  had  always  contended 
that  this  was  precisely  their  own  position. 

Like  the  supposed  traveller,  I  have  regarded  myself 
bound  to  search  for  a  fact.  I  have,  then,  no  political  philo- 
sophy to  offer,  by  which  the  existence  or  non-existence  of 
observed  facts  should  be  judged ;  nor  do  I  propose  to 
argue  for  the  existence  of  political  facts  from  the  existence 
of  other  facts  which  are  not  political  facts.  I  do  not  pro- 
pose to  show,  from  principles  assumed  a  prioi-i,  what  poli- 
tical energy  has  been  actuall}^  exhibited  here  by  human 
beings  ;  nor  do  I  propose  to  show  the  same  thing  by  con- 
clusions as  to  the  necessary  result  of  conditions  of  soil  and 
climate,  the  relative  situations  of  seas,  rivers,  mountains, 
and  other  geographical  phenomena. 

As  I  have  no  principles  of  political  philosophy  to  start 
with,  I  do  not  propose  to  use  any  observed  facts  as  illustra- 
tions to  prove  the  merit  or  demerit  of  any  such  principles. 
That  such  a  method  of  testing  political  principles  is  a 
proper  one,  and  that  it  offers  a  subject  worthy  of  the 
severest  study,  I  readily  agree  :  but  it  is  not  the  subject 
here  considered. 

Yet,  without  having  any  preconceived  political  theories 
to  start  with,  by  which  to  judge  of  the  existence  or  non- 
existence of  observed  facts,  it  is  still  necessarj'  to  have 
some  definite  idea  of  the  object  of  search.  I  am  prepared 
to  recognize  any  existing  political  fact,  as  a  fact.  But,  in 
searching  for  a  fact,  something  in  the  nature  of  a  definition 
of  the  fact  sought  is  required.  This  I  propose  to  give  here 
as  definition,  in  distinction  from  doctrine.  Though  I  am 
aware  that  some  will  say  that  such  definition  is  doctrine, 
I  am  obliged  to  state  it  as  definition,  or  as  propositions 


INTRODUCTION.  XXl 

which  need  no  proof,  because  I  know  of  no  proof  that  can 
be  given. 

I  conceive  that  wherever  human  beings  exist  in  society, 
some  of  them  do,  as  a  matter  of  fact,  exercise  a  power  over 
others,  —  a  power  operating  more  or  less  visibly,  in  some 
form,  quite  distinct  from  the  merely  casual  exercise  of 
superior  force  and  cunning  exhibited  by  brute  beasts 
towards  each  other.  It  is  an  intelligent  exercise  of  power ; 
the  power  is  consciously  exercised  by  some  in  respect  to 
others,  who  are  conscious  of  its  being  so  exercised. 

The  power  so  exercised  is  voluntary  or  autonomous  in  the 
hands  of  those  who  exercise  it.  It  is  to  be  recognized  only 
as  it  is  so  exercised  voluntarily  or  independently  of  control 
by  any  other  holder  of  similar  power. 

The  power  so  exercised  is  limited  only  by  conditions  of 
physical  existence.  Those  who  hold  it,  being  creatures  of  a 
moral  nature,  are  under  the  obligations  of  a  moral  standard 
of  action,  imposing  duties  on  them  in  the  exercise  of  the 
power,  which  duties  they  may  recognize  more  or  less  dis- 
tinctly. But  the  obligations  imposed  are  not  imposed  un- 
der the  power  in  question,  and  the  possession  of  the  power, 
as  a  fact,  is  determined  independently  of  the  observance  of 
the  obligation.  Those  who  hold  the  power  are  not  respon- 
sible under  any  power  of  the  same  sort,  even  so  far  as 
they  are  responsible  at  all. 

The  power  is  one  which  is  exercised  continuously,  or  as 
a  constant  force.  It  has  never  been  apprehended  as  begin- 
ning to  exist  in  the  hands  of  any  actual  holders,  but  known 
only  as  it  has  been  transmitted  to  them  from  some  former 
holder.  History,  as  distinguished  from  fable,  myth,  or 
allegory,  does  not  record  its  inception,  but  recognizes  it 


XXn  TNTEODUCTION. 

only  as  a  power  in  operation,  while  tracing  its  transmission 
from  one  holder  to  another  ;  identifying  it  as  the  same 
power,  by  whatever  persons  it  may  be  exercised. 

The  power  so  held  extends  to  all  possible  action  of  men 
in  respect  to  others,  and,  though  not  necessarily  exercised 
in  respect  to  all  such  action,  it  extends  to  all  such  action 
in  the  sense  that  it  is  not  separable  in  its  possession  rela- 
tively to  varieties  of  such  action.  In  respect  to  all  vari- 
eties of  such  action  it  must  be  held  as  a  unit,  if  it  is  held 
at  all.  While  it  is  capable  of  distribution,  to  an  indefi- 
nite extent,  in  its  exercise  by  agents,  it  is  indivisible  in 
the  hands  of  its  ultimate  possessors.  The  possession  of 
this  power  in  respect  to  one  form  of  human  action  can- 
not be  absolutely  separate  from  the  possession  of  the  same 
power  in  respect  to  any  other  form  of  human  action. 

Whether  as  definition  or  as  doctrine,  these  propositions 
will  probably  be  objectionable  to  some.  All  that  I  shall 
say  in  their  defence  is  that,  as  definitions,  they  apply  to 
the  object  of  my  own  search.  Whether  the}^  f^PPb'  ^^ 
some  object  which  others  may  suppose  ought  to  be  the  ob- 
ject of  my  search  is  a  different  matter,  —  one  with  which  I 
really  have  no  concern. 

Some  will  say,  perhaps,  that  no  such  power  exists  any- 
where. If  this  is  true,  then,  of  course,  the  power  cannot  be 
found  here.  Some  may  say  that  a  power  exists,  such  as  is 
here  otherwise  described,  but  that  it  is  divisible  in  its  pos- 
session as  well  as  in  its  exercise,  and,  moreover,  that  it  has 
been  so  held  in  division  in  this  country.  If  this  is  so,  then 
of  course,  my  definition  fails  in  that  respect.  All  that  I  can 
say  is  that  I  have  not  yet  seen  it  so  divided. 

I  have  already  forewarned  the  reader  not  to  expect  an 


INTRODUCTION.  XXUl 

array  and  balancing  of  "  authorities,"  such  as  is  proper  in 
a  matter  of  legal  controversy.  As  I  anticipate  that  the 
propriety  of  thus  rejecting  juristical  authority  on  a  matter 
of  political  fact  may  be  questioned,  I  am  also  prepared  for 
no  slight  censure  for  the  manner  in  which  I  have  presented 
the  conclusions  of  some  persons  not  now  living,  whose 
arguments  on  that  subject  have  long  been  received  at  the 
North  with  almost  as  little  question  as  if  they  had  the 
stamp  of  inspiration.  All  that  I  can  say  in  defence  is,  that 
whatever  has  been  offered  by  anybody  as  argument  must 
be  judged  by  everybody  else  as  argument:  it  cannot  be 
received  as  authority.  It  is  also  just  on  my  part  to  notify 
the  reader  that  the  conclusions  on  the  matter  of  political 
fact  which  are  here  offered  to  his  individual  judgment  are 
not  in  harmony  with  any  advanced  on  the  same  subject  by 
any  considerable  number  of  persons.  Indeed,  as  far  as  I 
am  aware,  there  is  nobody  now  living  who  accepts  similar 
conclusions,  and  but  one  other  writer  who  ever  presented 
a  similar  theory. 

The  only  person,  so  far  as  I  have  been  informed, 
who  took  the  same  view  of  the  political  history  of  the 
country,  and  who  deduced  similar  conclusions  as  to  the 
political  status  of  the  States  of  the  Southern  Confederacy 
at  the  close  of  the  war,  was  the  late  Dr.  O.  A.  Brown- 
son,  who  announced  them  in  several  of  the  articles  of  his 
"  Quarterly  Review,"  published  in  1864,  particularly  in 
an  article  entitled  "  Are  the  United  States  a  Nation  ?  "  in 
the  October  number.  Dr.  Brownson  also  stated  them 
more  systematically  in  his  "  American  Republic,"  pub- 
lished in  1865.  But  how  far  his  views  have  had  any  ac- 
ceptaijce,  I  have  had  no  means  of  learning. 


XXIV  INTllODUCTIOF. 

I  confess  to  feeling  the  presumption  shown  in  occupying 
such  an  isolated  position  on  a  matter  of  general  interest, 
and  acknowledge  that  no  excuse  for  making  it  known  can 
be  deemed  adequate,  if  such  an  excuse  is  needed.  Whether 
it  will  be  needed  is  for  the  reader  to  decide.  To  de- 
scribe my  view  of  this  position,  I  think  I  may  adopt  the 
words  written  in  respect  to  ethical  controversy  by  an 
English  author  who  has  often  battled  single-handed  for  his 
beliefs.  Mr.  John  Henry  Newman,  now  Cardinal  New- 
man, in  his  "Grammar  of  Assent,*'  p.  379,  has  said  :  "I 
begin  with  expressing  a  sentiment  which  is  habitually  in  my 
thoughts  whenever  they  are  turned  to  the  subject  of  men- 
tal and  moral  science,  and  which  I  am  as  willing  to  apply 
here  to  the  evidences  of  religion,  as  it  properly  applies  to 
metaphysics  or  ethics,  viz.,  that  in  these  provinces  of  in- 
quiry egotism  is  true  modesty.  In  religious  inquiry  each  of 
us  can  speak  only  for  himself,  and  for  himself  he  has  a  right 
to  speak.  His  own  experiences  are  enough  for  himself,  but 
he  cannot  speak  for  others  ;  he  cannot  lay  down  the  law  ;  he 
can  only  bring  his  own  experiences  to  the  common  stock 
of  psychological  facts.  He  knows  what  has  satisfied  and 
satisfies  himself ;  if  it  satisfies  him,  it  is  likely  to  satisfy 
others ;  if,  as  he  believes  and  is  sure,  it  is  true,  it  will 
approve  itself  to  others  also,  for  tliere  is  but  one  truth. 
And  doubtless  he  does  find  in  fact,  that,  allowing  for  the 
difference  of  minds  and  of  modes  of  speech,  what  con- 
vinces him  does  convince  others  also." 

It  is  the  same  in  respect  to  recognizing  the  political 
superior.  That  is  a  question  whereon  "  each  of  us  can 
speak  only  for  himself,  and  for  himself  he  has  a  right  to 
speak."     It   is  a  question  of  personal   experience.     The 


INTRODUCTIOISr.  XXV 

only  authority  to  each  one  is  the  authority  which  each  one 
finds  sufficient  to  compel  his  own  recognition. 

While  obliged  to  regret  the  isolation  of  m}^  position  in 
reference  to  the  general  treatment  of  the  subject,  I  have 
the  satisfaction  of  mentioning  with  gratitude  my  obliga- 
tions to  m}^  kinsman,  John  C.  Ropes,  Esq.,  of  the  Boston 
bar,  not  only  for  the  encouraging  interest  taken  in  the 
publication  of  my  views,  but  also  for  his  critical  super- 
vision of  tlie  whole  as  it  has  passed  through  the  press. 

It  can  hardly  be  necessary  to  remind  the  reader  that  the 
subject  of  this  essay  is  one  on  which  people  not  only  differ, 
but  about  which  they  sometimes  get  very  angry.  I  do  not 
expect  anyone  even  to  read  opinions  on  this  matter  which 
militate  with  his  own  without  strong  feelings  of  opposition, 
and  if  my  views  are  thought  worthy  of  anybody's  attention 
I  may  be  sure  there  will  be  some  whom  they  will  not 
please.  To  use  tiie  words  of  De  Tocqueville,  in  the  pre- 
face to  his  work  on  the  French  Revolution,  "  I  trust  I 
have  written  this  work  without  prejudice,  but  I  do  not 
claim  to  have  written  dispassionately."  Whatever  my 
feeling  on  the  subject,  I  have  only  claimed  the  right  to 
think  and  speak  for  myself.  But  I  have  had  no  intention 
to  denounce  any  who,  having  the  same  right,  have  adopted 
different  conclusions.  I  am  not  aware  of  having  used  lan- 
guage of  denunciation,  and  should  regret  if  any  expres- 
sions of  mine  should  be  so  regarded. 

Boston,  Sept.  15,  1881. 


TABLE     OF     REFERENCES     TO     CASES. 


Alexander's  cotton,  2  Wallace,  404 64 

Amy  Warwick,   The  {see  Prize  Cases),  2  Sprague's  Decisions, 

143  ;  14  Monthly  Law  R.  498 49  n.,  199  n.,  263 

Armstrong's  Foundry,  6  Wallace,  766 63 

Armstrong  v.  United  States,  13  Wallace,  154 76 

Bates's  Case,  4  Court  of  Claims,  569 181  n. 

Bermuda,  The,  3  Wallace,  514 184,  185  n. 

Bigelow  V.  Forest,  9  Wallace,  339 80  n. 

Bollraan  and  Swartwout,  Ex  parte,  4  Cranch,  75 80  n. 

Brillante,  The.     See  Prize  Cases. 

Burbank  v.  Conrad,  6  Otto,  310 78  n. 

Carlisle  r.  Henderson,  6  Court  of  Claims,  389;  8  lb.  153  .     .     .     189 
r.  United  States,  16  Wallace,  147  .     .     .     .    181,  189,  191  n. 

Chavasse,  Ex pcrrte,  The  Jurist,  XL,  400 184  n. 

Cherokee  Nation  v.  Georgia,  5  Peters,  118 16  n. 

Chisholm  v.  Georgia,  2  Dallas,  419     .     .    122  n.,  137,  141  n.,  298  n., 

310  n.,  312  n.,  316  n.,  329  n.,  498  n. 

Clarke,  Ex  parte,  10  Otto,  399 387,  399 

Cohens  v.  Bank  of  Virginia,  6  Wheaton,  414 429 

Collector  v.  Day,  11  Wallace,  120 382  n. 

Collie  V.  United  States,  6  Court  of  Claims,  431    .    181,  183  n.,  185  n., 

190  n. 

Confederate  Note  Cases,  19  Wallace,  548 7 

Confiscation  Cases,  20  Wallace,  92 52  n.,  62,  76,  320 

Conrad  v.  Waples,  6  Otto,  283 78 

Coppell  V.  Hall,  7  Wallace,  542 ^ 192  n. 

Crenshaw,  The.     See  Prize  Cases. 

Davis,  Jefferson,  Case  of.  Chase's  Decisions,  80  .     .     .     79,  82,  84  n. 

Day  V.  Micou,  18  Wallace,  156 64  n.,  80  n. 

Delmas  v.  Ins.  Co.,  14  Wallace,  665 7  n. 


XXVUl      TABLE  OF  REFERENCES  TO  CASES. 

Dewing  d.  Perdicaries,  6  Otto,  193 7  n. 

Dow  V.  Johnson,  10  Otto,  158 179  n. 

Died  Scott's  Case,  19  Howard,  441 135 

Egan, /n?-e,  5Blatchfoid,  323        44  n.  213,  223 

Ford  !;.  Surget,  7  Otto,  594  .     .      61  n.,  66  n.,  144  n.,  157  n.,  IG^  n., 
165  n. 

Gelston  v.  Hoyt,  3  Wheaton,  324 5  n. 

Georgia,  Tlie,  1  Lowell,  96  ;  7  Wallace,  32 188  n. 

Georgia  r.  Stanton,  6  Wallace,  65 148  n.,  211,  364  n. 

Gibbons  v.  Ogden,  9  Wheaton,  1 132  n. 

Grapeshot,  The,  9  Wallace,  129 53 

Gray  Jacket,  The,  5  AVallace,  342 64  n. 

Grazebrook,  The.     See  Chavasse. 

Green's  Case,  6  Court  of  Claims,  420 188  n.,  190 

Habichtr.  Alexander's  Exr.,  1  Wood,  412 194  n. 

Hamilton  v.  Dillon,  21  Wallace,  86 51  n. 

Hanauer  v.  Doane,  12  Wallace,  345 26  n.,  158  n.,  191  n. 

V.  Woodruff,  15  Wallace,  439 158  n. 

Harrison's  Case,  6  Court  of  Claims,  323  ;  8  lb.  472      .     .  180,  193  n. 

Haycroft  v.  United  States,  22  Wallace,  81 65  n.,  77 

Hepburn  v.  Elzey,  2  Cranch,  452' 16 

Hiawatha,  The.     See  Prize  Cases. 

Hickman  v.  Jones,  9  Wallace,  197 51 

Hill's  Case,  8  Court  of  Claims,  470 180,  193  n. 

Horn  V.  Lockhart,  17  AVallace,  570 7  n.,  26  n. 

Keith  V.  Clark,  7  Otto,  454  .     .    22-33,  87,  149,  156,  157,  159,  252,  301 
Keppel's  Admr.  v.  Petersburg  R.  R.,  Chase's  Decisions,  210  .     .  7  n., 
52,82 

Lamar  V.  Browne,  2  Otto,  187 75  n.,  77,  197 

Lane  County  v.  Oregon,  7  Wallace,  76 12  n.,  103  n. 

Lange,  Sx;9w;e,  18  Wallace,  163 80  n. 

La  Plante's  Case,  6  Court  of  Claims,  319 180 

Legal  Tender  Cases,  12  Wallace,  553 51  n.,  89,  426 

Luther  v.  Borden,  7  Howard,  43 5  n.,  250,  253 

McCulloch  V.  Maryland,  4  Wheaton,  316 312  n. 

MacVeigh  v.  United  States,  11  Wallace,  259 68 

Matthews  v.  McStea,  1  Otto,  11 51  n. 


TABLE   OF   REFERENCES   TO   CASES.  XXIX 

Mauran  v.  Ins.  Co.,  6  Wallace,  1 50  n. 

Merchants'  Bank  v.  Union  Bank,  22  Wallace,  293 53 

Miller  v.  United  States,  11  Wallace,  268 69,  76 

Minor  v.  Happersett,  21  Wallace,  162 370  n. 

Munn  V.  Illinois,  4  Otto,  113 370  n. 

Osborn  v.  Xickerson,  13  Wallace,  655 22  n. 

Ouachita  Cotton  Cases,  6  Wallace,  529 180  n. 

Pargoud  v.  United  States,  13  Wallace,  156 76 

Penhallow  v.  Doane,  3  Dallas,  93 10  n.,  129,  315,  316  n. 

Prize  Cases,  The,  2  Black,  667      ...    49,  50,  164  n.,  168,  169,  320 

Radich  v.  Hutchins,  5  Otto,  210 191  n. 

Rose  0.  Himely,  4  Cranch,  272 5  n. 

Rothschild  v.  United  States,  6  Court  of  Claims,  204     ..     .     178  n. 

Santissima  Trinidad,  The,  7  Wheaton,  310 184  n. 

Scott  V.  Jones,  5  Howard,  343 16  n. 

Shortridge  v.  Macon,  Chase's  Decisions,  144;  1  Abbott's  U.   S. 

Rep.  56 7  n.,  79  u.,80  n.,  86n. 

Siebold,  Ex  parte,  10  Otto,  382 388 

Slaughter  House  Cases,  The,  16  Wallace,  36    .....     .  370,  374 

Sprott  V.  United  States,  20  Wallace,  459     .    7  n.,  26  u.,  178  n.,  179  n. 

Stewart  v.  Kahn,  11  Wallace,  50G 21  n. 

Strauder  v.  West  Virginia,  10  Otto,  303 378 

Tennessee  v.  Davis,  10  Otto,  275 375,  410 

Texas  v.  White,  7  Wallace,  700    .     .       8-17,  26  n.,  51  n.,  128,  257  n. 

Thorington  v.  Smith,  8  Wallace,  1 7  n. 

Tyler  y.  Defries,  11  Wallace,  331 68  n.,  72 

Union  Ins.  Co.  v.  United  States,  6  Wallace,  759 63 

United  States,  Lyon  etal.  v.  Huckabee,  16  Wallace,  414  .  171,  172  n. 
United  States  v.  Anderson,  9  Wallace,  56 4  n.,  67,  76 

V.  Burr,  4  Cranch,  469 80  n. 

V.  Cruikshank,  2  Otto,  543 377 

V.  Dieckelman,  2  Otto,  520 191  n. 

V.  Greathouse,  2  Abbott's  U.  S.  380 60 

V.  Ins.  Cos.,  22  Wallace,  99 7  n.,  51  n. 

V.  Insurgents,  2  Dallas,  335 80  n. 

V.  Keehler,  9  Wallace,  83 7  u. 

V.  Klein,  13  Wallace,  130 65  n.,  67,  75 


XXX  TABLE   OF   FtEFERENCES   TO   CASES. 

United  States,  v.  McRae,  8  Law  R.  Equity  Cases,  69    .    173  n.,  262  n. 

V.  Mitchell,  2  Dallas,  335 80  n. 

V.  Morrison,  Chase's  Decisions,  525 53 

V.  Padelford,  9  Wallace,  531  .     .     .     .  -  .      65  n.,  67,  75 
V.  Prioleau,  2  Hemming  and  Miller,  559  .  173  n.,  261  n., 
319 

V.  Reese,  2  Otto,  214 377 

I'.  Smith,  1  Hughes,  347 173 

V.  Winchester,  9  Otto,  375 191  n. 

Virginia,  Ex  parte,  10  Otto,  339 380,  382 

V.  Rives,  10  Otto,  314 .379 

Wallach  v.  Van  Riswick,  2  Otto,  207  ...  78,  79  n.,  80  n.,  177  n. 
White  V.  Hart,  13  Wallace,  649  .  5  n.,  18,  51  u.,  IGO,  256  n.,  305,  364 
Williams  v.  Bruffy,  6  Otto,  176     ...     .  7  n.,  26  n.,  162  n.,  164 

V.  The  Suffolk  Ins.  Co.,  13  Peters,  420 5  n. 

AVindsor  v.  MacVeigh,  3  Otto,  277 69  n.,  79  n. 

Young,  Assignee  of  Collie  v.  United  States,  7  Otto,  58  .     77,  178,  181, 

185 


TABLE   OF   CONTENTS. 


CHAPTER   I. 

The  Political  Status  of  the  Eleven  States  of  the  Confederacy 
IN  Consequence  op  the  Rebellion,  as  described  by  Persons  in 
THE  several  Departments  of  the  General  Government,  in  the 
Opinions  of  Justices  of  the  Supreme  Court,  and  in  the  Lan- 
guage OF  Presidents  and  of  Congress  on  Reconstruction. 

The  location  of  political  power,  indicated  in  the  exercise  of  civil  govern- 
ment, 3,  4.  Capacity  of  the  Federal  Judiciary  to  recognize  it,  4-6,  7. 
Chase,  Ch.  J.  (1808),  in  Texas  v.  White,  on  the  constant  existence  of  the 
States  of  the  Confederacy,  8-15.  Grier,  J.,  dissenting,  16,  17.  Swayne, 
J.  (1871),  in  White  v.  Hart,  recognition  of  States  subsisting  under  po- 
litical incapacity,  18-21.  In  Keith  v.  Clark  (1878),  Miller,  J.,  holding 
similar  view,  22-27  :  Harlan,  J.,  view  of  a  usurping  State  government 
distinguishable  from  the  State,  27-29 :  Bradley,  J.,  taking  this  view  as 
that  in  Texas  v.  White,  29-33.  Mr.  Lincoln  had  (18G3)  a  similar  view, 
81-36.  Congress  (1804)  had  the  same  view  in  connection  with  the 
guaranty  of  republican  government,  37,  38.  Obscurity  as  to  any  theory 
determining  the  Reconstruction  legislation,  39.  Congress  (1807)  desig- 
nating the  States  as  the  parties  in  rebellion,  40,  41.  Majority  report  of 
Committee  on  Reconstruction  (1866),  stating  some  theories  offered,  42-46. 
View  of  majority  of  Committee,  46-48. 


CPIAPTER  II. 

The  Subject  continued  by  Examination  of  the  Language  of  the 
Several  Departments  op  the  Government  in  Reference  to 
Questions  of  Belligerency  and  Treason. — A  Chaos  of  Doc- 
trine. 

In  the  Prize  Cases  (1862)  the  States  regarded  as  belligerent,  49,  50.  The 
Confederate  government  not  so  recognized,  51.     View  originally  taken 


XXXU  TABLE   OF   CONTENTS. 

by  Chase,  Ch.  J.,  52,  53.  President  Lincoln's  views,  between  1801  and 
1864,  54-5G.  Foreign  recognition  (1801)  of  belligerent  capacity  of  the 
States,  56,  57.  President  Johnson's  expressions,  58.  Variation  in  the 
terms  employed  (18G1-18C9)  by  Congress,  59.  The  general  question  of 
treason  in  the  Civil  War,  00.  Case  in  Tenth  Circuit  (California),  Judge 
Field's  charge,  01.  The  Confiscation  Acts  (1861,  1862)  as  punishing 
treasons,  02.  Amnesty  as  preventing  such  effect,  63.  Question  of  war 
power  in  such  legislation,  6-4.  Alexander's  cotton,  opinion  of  court  by 
Chase,  Ch.  J.,  65.  In  Anderson's  case,  by  Davis,  J.,  a  trust  for  the  loyal 
recognized,  67.  McVeigh's  case,  opinion  by  Swayne,  J.,  68;  Miller's 
case,  opinion  by  Strong,  J.,  sustaining  confiscation  as  war  power,  69-71. 
Field  and  Clifford,  JJ.,  taking  opposite  view,  71,  72.  Like  disagreement 
in  Tyler  v.  Defrees,  73,  74.  Chase  and  Waite,  Ch.  JJ.,  in  other  cases, 
relying  on  belligerent  right,  75-78.  These  Acts  not  punitive  municipal 
law,  79.  No  judicial  determination  of  treason,  80.  Inferences  from  Ex- 
ecutive proclamations,  81.  The  Fourteenth  Amendment  as  punishing 
treason,  82-84.  B.  T.  Johnson's  statement  of  Chase's  view,  85,  86. 
Old  political  theories  influencing  judicial  statement,  87.  The  theories 
described,  88.  Secession  never  a  question  in  the  courts,  89.  New 
doctrine  of  State  existence  as  a  legal  obligation,  90.  Contradictions 
involved  in  the  citations,  91.  Nature  of  the  demonstration  which  is 
herein  proposed,  92. 


CHAPTER  HI. 

The  Possession  op  Sovereign  Power  not  determinable  by  the 
Constitution  as  Law.  —  In  what  Sense  determinable  by  His- 
tory.—  The  Historical  Question  as  affected  by  the  War. — 
Different  Historical  Statements  of  the  Location  of  that 
Sovereignty  by  which  the  Constitution  was  established. 

Von  Hoist's  comment  on  worship  of  the  Constitution,  93,  94.  How  like 
a  fetish  worship,  95.  Sovereignty  never  a  question  under  law,  96-98. 
Political  genesis  of  the  Constitution  a  historical  question,  99.  Varia- 
tions noticed  in  ordinary  historical  statements,  99-103.  Two  leading 
conceptions  opposed  to  a  right  of  secession,  104.  A  history  consistent 
with  the  action  of  the  government  in  the  Civil  War  must  be  found,  105. 
The  indivisibility  of  sovereignty  asserted,  100.  How  involved  in  justi- 
fying the  action  of  the  government,  107.  Of  sovcreigntj'  in  the  people 
or  nation  as  a  mass,  108.  Origin  of  that  theory,  109.  Undisputed  his- 
tory inconsistent  with  this,  110-112.  Vague  ideas  among  advocates  of 
tills  theory,  113.     Sujiported  by  the  school  of  Story  and  Webster,  114. 


TABLE   OF   CONTENTS.  XXXUl 


CHAPTER  lY. 

The  Weakness  of  Theories  founded  on  the  several  Possession 
OP  Sovereignty  by  the  original  States.  —  Historical  Keview 
OF  National  and  State  Existence  from  the  Colonial  Era  to 
THE  Adoption  of  the  written  Constitution. 

Contracts  of  States  not  like  those  of  persons  under  law,  116-118.  Trans- 
fers of  sovereign  power,  how  far  possible,  119.  Prevalent  conception  of 
the  original  States  as  severally  sovereign,  120.  Results  of  this  concep- 
tion, 121,  122.  The  States  never  singly  sovereign,  12.3.  The  integral 
colonial  existence  continued  in  States,  124.  Their  only  possession  of 
sovereignty  was  as  a  union,  126.  The  political  people  existing  as  thirteen 
distinct  States,  127.  Ambiguous  use  of  terms  a  source  of  misconception, 
128.  Distinctions  in  the  use  of  the  word  "  people,"  129.  The  question 
one  of  fact  only,  1.30.  Succession  of  federal  instruments  under  the  same 
political  people,  131-136.  Exception  to  Chisholm  v.  Georgia  as  political 
authority,  137,  138.  Sovereignty  distributed  in  its  exercise  only,  139. 
The  name  United  States,  —  why  the  proper  one,  140.  Summary  of  the 
historical  testimony,  141. 


CHAPTER  Y. 

The  Effect  of  the  Secession  Ordinances  under  the  true  Theory 
of  the  National  Existence. — The  Political  Action  of  the 
Government    in    its    several   Functions  presented    as   it   mat 

HAVE   indicated   A   VIRTUAL   RECOGNITION    OF    THAT   EFFECT. 

Mr.  Lincoln  (1861)  on  the  legal  nullity  of  secession  ordinances,  142-144. 
State  lapse  or  State  suicide  as  a  political  effect,  145.  Brownson  on  this ; 
Von  Hoist's  comment,  146,  147.  Act  of  corporate  State  affects  all  its 
citizens,  148.  State  not  found  in  a  loyal  minority,  140.  The  resulting 
effect  is  the  fact  historically  known,  150.  Sovereignty  held  exclusively 
by  the  States  voluntarily  united,  151.  Government  usurped  by  organs 
of  lapsed  States,  152-154.  Political  question  as  presented  in  Keith  v. 
Clark,  155.  Presumption  favoring  legal  claims  under  pretended  State 
authority,  156.  How  differing  under  alleged  State  continuance  or  under 
actual  State  lapse,  157, 158.  The  United  States  successor  to  legal  claims 
of  lapsed  State,  159.  White  v.  Hart  not  relevant  to  the  political  ques- 
tion, 160.  Need  of  distinguishing  the  belligerent  personality,  161-1G3. 
The  bearing  of  the  Prize  Cases  as  stated  in  a  later  case,  164.  Tlie  Prize 
Cases  differ  in  respective  bearing  on  the  question,  165.  Seizures  in 
blockade  or  on  the  high  seas,  how  different,  166-169.     Confiscation,  if 


XXXIV  TABLE   OF   CONTENTS. 

compatible  with  recognition  of  States  as  belligerent,  170.  Title  by 
conquest  asserted  in  confiscation  cases,  171-174.  Novel  doctrines  in 
such  cases  as  to  contraband  of  war,  175-178.  Question  of  State  bel- 
ligerency affecting  neutral  claimants,  179.  Of  aliens  charged  with 
aiding  rebellion,  180-185.  The  case  of  non-resident  aliens,  186-192. 
The  case  of  resident  aliens,  193,  194.  The  distinction  as  affecting  the 
power  claimed  in  the  Emancipation  policy,  195,  196.  Contradiction 
in  simultaneous  claims  of  belligerent  riglit  and  sovereign  power,  197. 
The  argument  from  necessity,  200.  Effect  of  State  lapse  as  legalizing 
the  action  of  the  government,  201,  202.  The  question  of  treason  in  this 
connection,  203,  204.  Treason  and  belligerency,  how  far  coexistent, 
205-207.     Results  of  not  recognizing  the  distinction  indicated,  208-210. 


CHAPTER  VI. 

The  Subject  of  the  last  Chapter  continued.  —  The  Political 
Action  of  the  Government  in  Reconstruction  examined,  as  a 
Recognition  of  the  Effect  here  ascribed  to  the  Secession 
Ordinances. 

The  status  of  States  of  the  Confederacy  not  determinable  b}'  courts,  211- 
213.  Hovy  described  by  Supreme  Court,  214.  Nature  of  the  political 
fact  shown  by  acts  of  government,  215.  Reconstruction  measures  of 
various  character,  216-218.  Case  of  Tennessee  exceptional,  219.  Bear- 
ing of  Act  of  March  2,  1867,  220.  Of  report  from  joint  committee 
originating  the  bill,  221.  Theories  of  conquest  and  of  State  suicide 
combined  in  report,  222.  Views  of  members  otherwise  expressed,  224. 
Doctrine  of  conquest  by  Senators  Howard  and  Fcssendcn  and  Mr. 
Stevens,  22-5,  220.  Of  State  suicide  as  held  by  Mr.  Boutwell,  227. 
Mr.  Bingham  and  Mr.  Blaine  holding  other  views,  228-230.  Stevens's 
bill  as  passed  in  House,  230.  Amended  in  Senate  and  passed,  231,  232. 
A  parallel  in  English  history,  233,  234.  Of  the  guaranty  of  republican 
government  as  basis  of  Act,  236.  Mr.  Bingham's  defence  of  his  amend- 
ments, 237-243.  The  guaranty  as  argument  for  "  manhood  suffrage," 
244-246.  Mr.  Shellabarger  and  others  resting  on  the  guaranty,  247-249. 
The  supposed  application  of  the  guaranty  examined,  250.  The  Rhode 
Island  case  not  a  precedent,  251.  Of  some  supposed  "  loyal "  persons 
as  constituting  a  State,  252,  253.  Revolutionary  effect  of  such  construc- 
tion of  the  guaranty,  2.54-256.  Conquest  theory,  how  advanced,  257- 
259.  Distinction  in  belligerency,  200.  A  conquest  theory  inapplicable, 
262.  Judge  Sprague's  idea  of  the  belligerents,  263,  264.  Relation  of 
conquest  to  State  suicide,  265.  Position  of  private  writers,  206.  Joel 
Parker  and  B.  R.  Curtis,  267,  268.     Isaac  S.  Redfield  and  C  B.  Loring, 


TABLE   OF   CONTENTS.  XXXV 

269.  J.  P.  Bishop  and  J.  R.  Lowell,  270,  27L  Senator  Sumner's  argu- 
ment, 272-275.  Mr.  Boutwell's  view  of  State  suicide,  276,  277.  No  law 
found  in  abstract  ideas,  278,  279.  Question  of  State  governments  as 
illegal,  280,  28L  Legal  argument  not  applicable,  282.  Mr.  Reverdy 
Johnson's  argument,  283.  Sovereignty  and  allegiance  political  facts, 
284,  285.     Possible  revolutionary  change  suggested,  286. 


CHAPTER  VIT. 

Popular  Dislike  of  Abstract  Conceptions.  —  Their  Necessity  in 
Political  Discussion.  —  The  Indivisibility  of  Sovereignty. — 
The  Sovereignty  of  the  Political  People  distinguished  from 
Popular   Sovereignty.  —  Question   of  a  Revolutionary   Change 

FOUNDED     on      POPULAR      SOVEREIGNTY. Of     THE     POSITION    OF     THE 

Judiciary  in  Reference  to  such  Question. 

A  question  called  by  some  "  a  pernicious  abstraction,"  287-289.  Necessity 
for  abstract  political  ideas,  290,  291.  Indivisibility  of  sovereignty,  292, 
293.  Divisibility  maintained  by  some,  294,  295.  The  question  here  is  of 
allegiance,  296.  Intiuence  of  political  dogmas,  297-299.  Paradox  aris- 
ing from  supposed  divisibility,  300,  30L  Sovereign  and  non-sovereign 
governments,  302.  The  General  Government  not  a  sovereign  govern- 
ment, 304.  Its  continuance  the  result  of  State  action,  305-307.  If 
sovereignty  held  by  people  or  nation,  308.  History  of  such  a  theory, 
309-312.  French  and  American  revolutions  unlike,  313,  314.  States  in 
union  recognized  as  a  sovereign,  315-319.  Views  common  during  the 
war,  320.  Object  of  this  treatise,  321.  The  question  one  for  the  present 
time,  322-324.  Sovereignty  of  the  nation  as  stated  by  Pomeroy  and 
Jameson,  325-328.  Austin  regarding  sovereignty  as  a  unit,  329.  Sover- 
eignty not  public  opinion,  330-332.  Usurping  governments  necessary 
for  such  sovereignty,  333,  334.  Not  a  doctrine  of  the  fathers  of  repub- 
lic, 336.  How  present  government  explainable  under  such  doctrine, 
337-339.  If  recent  change  by  revolution  discernible,  340-348.  Of  testi- 
mony to  such  point  from  general  opinion,  349.  Force  of  judicial  opinion 
on  such  point,  350.  Varies  according  to  theory  adopted,  351,  352.  An 
opinion  possibly  now  prevalent,  353.  Inferences  from  course  of  the 
government,  354.  The  answer  as  depending  on  the  existence  of  the 
eleven  States,  355.  Result  for  judiciary  and  others,  356,  357.  Probable 
influence  of  two  misleading  tendencies,  358,  359.  Revolution  by  juristi- 
cal construction,  360.  Future  position  of  a  national  government,  361. 
Future  construction  of  the  Constitution,  3G2.  Of  changes  by  amend- 
ment, 363.  How  known  to  the  judiciary,  364-367.  Construction  as 
affected  by  a  revolution,  368,  369.  Bearing  of  recent  cases,  370. 
Miller,  J.,  in  Slaughter-House  Cases,  371,  372.     Bradley,  J.,  in  same. 


XXXVl  TABLE   OF   CONTENTS. 

373.  Swayne,  J.,  in  same,  374-376.  Cases  under  new  legislation,  377. 
The  Virginia  cases,  378-382.  Field,  J.,  in  same,  38.3,  384.  Cases  on 
elective  franchise,  385-387.  Bradley,  J.,  in  same,  388-392.  Tlicir  po- 
litical doctrine  examined,  393-398.  Field,  J.,  in  same  cases,  399-401. 
Stor3''s  political  comment,  402,  403.  Political  basis  of  elective  fran- 
chises, 404-407.  Operation  of  supposed  change,  408,  409.  Tennessee  v. 
Davis,  410.  Opinion  by  Strong,  J.,  411-420.  The  poHtical  doctrine 
involved,  421-423.  The  position  of  the  Supreme  Court,  424,  425. 
Legal  Tender  cases,  426.  Opinion  by  Strong,  J.,  427-130.  Bradley,  J., 
separate  opinion  of,  431-4.33.  Chase,  Ch.  J.,  dissenting,  434.  llcsulting 
inferences  from  judicial  opinions,  435-437. 


CHAPTER  VIII. 

Further  Consideration  of  the  Question  of  a  Revolutionary 
Change  of  the  Seat  of  Sovereign  Power.  —  Position  of  private 
Jurists  in  Reference  to  such  a  Question.  —  The  Position  of 
OTHER  Citizens  in  public  or  private  Station.  —  The  Question 
of  Allegiance  a  Question  for  all. 

The  political  question  presented  by  private  jurists,  438,  4.39.  Pomcroy's 
distinction,  440,  441.  Two  conceptions  of  "  settled  by  the  war,"  442, 
443.  The  lawyer's  point  of  view,  444.  Redfield's  argument,  445-449. 
President  Garfield's  view,  450,  451.  Ordinary  views  of  the  war,  452-454. 
War  as  evidence  of  pre-existing  facts,  455.  Of  a  war  of  ideas,  456. 
Nationalism  as  a  law,  457-400.  Emancipation  under  ideas  as  law,  4G1- 
464.  Mr.  Garfield's  speech,  August  4,  1876,  465-407.  Mr.  Garfield  as  a 
revolutionist,  468-473.  Nation  and  empire  as  antagonistic,  474-476. 
Mr.  Garfield's  speech,  June  27,  1879,  477.  His  citation  of  Pinckney,  of 
South  Carolina,  481.  Pinckncy's  real  position,  482.  His  citation  of 
James  Wilson,  485.  Wilson's  real  position,  486,  487.  Conversation  be- 
tween Grant  and  Bismarck,  488, 489.  "  Saving  the  Union,"  —  its  meaning, 
490,  491.  Force  as  determining  nations,  492.  Sir  J.  F.  Stephen  cited, 
493-497.  Of  revolution  as  a  right,  498-501.  Coercion  by  law  or  by 
war  distinguished,  502-.506.  Mr.  Garfield  on  sovereignty,  507.  The 
Colonics  actors  in  the  Revolution,  508-511.  Obligation  towards  the 
Constitution,  512.  Mr.  Lincoln's  declaration,  513,  514.  Mr.  Garfield's 
declaration,  515,  516.  The  citizen's  duty,  517-522.  Of  unsettled  ques- 
tions, 523-525.  Alternative  presented,  526-530.  The  political  question, 
531-534.  Causes  of  the  war,  535.  Its  sectional  character,  636.  The 
question  which  is  not  sectional,  637,  538. 


THE  ARGUMENT. 

The  possession  of  the  power  known  as  sovereign  is  seen  in  the 
enforcement  of  personal  will  in  political  action,  pp.  3,  98,  215,  284, 
322,  497,  501,  509,  531. 

The  possession  of  sovereign  power  in  this  country,  or  the  theory  of 
our  national  existence,  since  the  political  action  which  was  made  possi- 
ble by  the  military  issue  of  the  Civil  War,  is  known  by  ascertaining 
the  persons  whose  will  was  enfoi'ced  in  that  action,  pp.  285,  322,  347, 
529,  533. 

The  historical  question  presented  is  whether  this  exercise  of  personal 
will  was  in  accordance  with  the  theory  of  our  national  existence  at  the 
beginning  of  the  Civil  War,  or  indicates  a  revolutionary  change  in  the 
possession  of  sovereign  power,  pp.  6,  285,  346,  356,  529,  533. 

This  political  action  appeared  in  the  exei'cise  of  executive,  legisla- 
tive, and  judicial  authority  by  persons  identified  with  the  general 
government,  as  previously  organized,  of  the  United  States,  especially 
in  belligerency,  Ch.  II.,  and  the  "  Reconstruction  measures,"  pp.  35- 
48,  216  ;  in  both  of  which  the  question  of  the  political  existence  of  a 
State  of  the  United  States  as  affected  by  its  forcible  assertion  of  the 
separate  possession  of  sovereign  existence  was  involved,  Ch.  I. ,  11. 

The  Ordinary  Views. 

It  is  generally  assumed,  that,  as  matter  of  historical  fact,  each  of 
the  "Confederate  States,"  so  called,  has,  from  the  beginning  of  the 
secession  movement,  continued  to  exist  as  one  of  the  political  per- 
sonalities known  as  States  of  the  United  States,  40,  46,  346. 

This  being  supposed,  several  explanations  of  the  political  action 
above  referred  to  have  been  offered;  as,  — 

I.  The  war  was  conducted  by  the  government,  as  representing  the 
States  which  continued  to  support  it,  to  compel  the  Confederated 
States,  as  severally  sovereign,  to  remain  members  of  a  federal  union 
originated  by  the  compact  of  thirteen  sovei'eigu  States,  100.     This 


XXXviii  THE   AKGUMENT. 

view  appears  in  the  questions  raised  by  belligerency,  49-60,  199,  320; 
by  the  Confiscation  Acts,  61-78,  197 ;  by  the  Emancipation  Proclama- 
tion, 81,  195  ;  and  in  the  position  of  foreign  governments,  56,  207, 
300. 

Comment.  —  This  view  is  in  harmony  with  the  theory  of  our  na- 
tional existence  always  held  by  the  inhabitants  of  the  Confederate^^ 
States  from  the  beginning  of  the  secession  movement,  87.  It  w^as 
inconsistent  with  charging  treason  or  rebellion  on  the  part  of  those 
States  or  of  their  inhabitants,  203,  207,  286 ;  and  involved  the  asser- 
tion of  a  conquest  of  those  States  by  the  others,  42  n.,  171,  257,  265, 
320.  It  must  be  supposed  to  have  been  abandoned  by  the  govern- 
ment, 209,  223,  259,  320. 

II.  The  war  was  conducted  on  the  part  of  the  government  to 
maintain,  in  the  territory  of  the  Confederated  States,  its  exercise  of 
the  powers  defined  in  the  written  Constitution,  and  held  as  sovereign 
powers  ceded  to  it  by  those  States  as  each  severally  sovereign,  295- 
299,  337.  By  resisting  the  exercise  within  their  territory  of  these 
granted  powers,  and  claiming  it  for  themselves,  througii  their  con- 
federacy, the  governments  of  these  States  became  usurpers,  27-38; 
and  those  supporting  them  became  rebels  and  traitors  to  the  general 
government  as  the  legitimate  possessor  of  these  powers,  31,  43. 

Commenl.  —  ThQ  separate  possession  of  a  portion  of  the  powers 
known  as  sovereign  is  an  impossibility  from  the  nature  of  such 
powers,  106,  292.  The  impracticability  of  recognizing  such  posses- 
sion, as  between  the  States  and  the  general  government  during  the 
war  was  demonstrated  in  the  action  of  the  latter,  156,  292-295,  301; 
and  the  State's  possession  of  the  reserved  powers  was  disallowed  in 
the  Reconstruction  measures,  248. 

III.  The  government  performed  a  duty  imposed  by  the  Constitu- 
tion to  enforce  its  provisions  as  a  law  bhiding  all  the  States  as 
political  personalities,  90,  320  ;  which  character  of  the  Constitution 
is  supposed  to  be  either,  — 

a :  intrinsic  in  its  original  nature,  93-95,  101. 

Comment,  — vihich  is  contrary  to  the  conditions  of  all  political 
existence,  and  to  the  nature  of  law,  93-98. 

Or,  h:  developed  by  judicial  and  juristical  construction  of  the 
written  Constitution,  as  of  a  statutory  political  law,  350,  356. 

Comment,  —  which  is  contrary  to  the  judicial  or  juristical  function, 
as  also  to  all  political  existence,  300,  424. 

Or,  c  :  due  to  the  continuing  will  of  the  people  as  a  mass  from  the 


THE   AEGUMENT.  XXXIX 

time  the  Constitution  was  adopted,  or  even  from  the  Revolution  of 
the  Colonies,  108,  309. 

Comment,  —  which  is  contradicted  by  the  established  facts  of  his- 
tory since  the  Colonial  period,  110;  and  is  contended  for  only  on  a 
hypothesis  inconsistent  with  the  nature  of  any  political  existence, 
114,  3U,  321. 

IV.  That,  in  the  interval  between  the  beginning  of  the  Civil  War 
and  the  close  of  the  Reconstruction  period,  a  revolutionary  change 
took  place,  340,  348,  355;  whereby  all  the  powers  known  as  sovereign 
passed  to  the  people,  or  nation  as  a  mass,  represented  solely  by  the 
persons  then  constituting  the  general  government,  who  thereby  ac- 
quired for  themselves  and  their  successors  in  office  the  right  to 
maintain  themselves  as  a  sovereign  government,  and  to  compel  any 
State  as  a  political  corporation  to  exercise  its  functions  as  subsidiary 
to  the  continuance  of  such  government,  85,  321,  341,  353,  362,  408, 
522;  making  true,  as  political  fact,  that  which  had  before  been  as- 
serted as  true  on  theory  (III.  c). 

Comment.  —  If  such  possession  of  sovereignty  by  the  people  could 
be  recognized,  324,  the  substitution  of  the  persons  holding  the  general 
government  cannot  be  shown  to  have  been  sustained  either  by  the 
active  will  or  by  the  conscious  acquiescence  of  the  people  as  a  mass, 
or  of  a  majority,  325-346;  and  could  be  accepted  only  as  a  successful 
usurpation  by  such  persons,  supported  more  or  less  knowingly  by  a 
partisan  minority  under  the  name  of  a  victory  of  ideas,  456;  or, 
simply,  as  necessary,  200,  346,  to  the  national  existence,  333,  355, 
393-398,  454,  467,  488. 

The  View  herein  maintained. 

The  question  whether  the  several  States  which  acted  in  the  Con- 
federacy retained  the  political  existence  of  States  of  the  Union  was 
not  one  determined  by  the  Constitution  as  law,  nor  is  it  within  the 
judicial  function,  211,  350,  352. 

Opinions  affirming  the  uninterrupted  existence  of  those  States  have 
only  involved  the  courts  in  many  contradictions,  90;  and,  from  the 
nature  of  the  case,  are  of  no  authority,  211. 

The  political  fact,  as  it  stands  in  history,  is  —  that  up  to  the  close 
of  the  Reconstruction  era  those  States  did  not  exercise  the  political 
powers  which  had  characterized  a  State  of  the  Union;  but,  essentially, 
were  treated  by  the  government  as  land  and  people  in  the  situation  of 
the  Territories,  150,  215,  235,  284. 


Xl  THE   AKGUMENT, 

The  theory  of  our  national  existence,  therefore,  now  involves  the 
doctrine  that  a  State  or  States  unsuccessfully  attempting  "secession" 
lapse  into  the  Territorial  condition;  whether  this  is  accepted  as  a 
revolutionary  change  or  as  in  harmony  with  the  constitution  of  gov- 
ernment as  it  was  before  the  war,  321-324. 

The  possession  of  sovereign  power  in  this  country  before  the 
adoption  of  the  Constitution  was  seen  in  the  forcible  exhibition  of  ' 
personal  will  by  thirteen  political  personalities,  identified  by  origin 
and  continuity  with  thirteen  Colonies,  121-141,  319,  508,  511;  thereby 
jointly  acquiring  and  holding  the  powers  of  one  sovereign  national 
state  over  one  region  and  its  inhabitants,  though  never  holding  any 
of  such  powers  singly,  or  otherwise  than  in  union,  319 ;  the  powers 
exercised  by  any  joint  instrument  they  should  agree  to  appoint,  as 
well  as  those  which  they  should  leave  to  be  exercised  in  each  State  by 
such  instrument  as  it  might  severally  appoint,  being  sovereign  only  as 
they  together  constituted  a  unitary  national  sovereignty  sustained  as 
fact  above  law  by  their  united  consent  and  force,  126,  136,  139,  140. 

It  cannot  be  shown  that  a  revolutionary  change  in  the  location  of 
sovereign  power  had  taken  place,  either  at  the  adoption  of  the  Con- 
stitution, or  at  any  later  period,  132-135,  139,  before  the  war. 

The  strongest  evidence  of  the  original  investiture  of  sovereignty 
in  the  States  only  as  voluntarily  united  would  have  been  given,  if, 
before  the  adoption  of  the  Constitution  (in  the  supposed  case  that 
one  of  them  had  undertaken  to  exercise  unitary  sovereignty  in  sev- 
eralty), the  others  (neither  acquiescing  in  the  attempt,  as  not  incon- 
sistent with  their  own  claims  to  constitute  a  sovereign  power,  nor 
yet  forcibly  compelling  the  State,  as  still  sovereign,  to  return  to 
membership  in  a  federal  union)  had  imposed  the  Territorial  condi- 
tion on  the  inhabitants  and  their  local  government,  133,  140. 

The  course  actually  taken  by  the  government  under  the  written 
Constitution,  in  resisting  secession  as  rebellion  of  the  populations  of 
the  Confederated  States  and  afterwards  treating  them  as  Territories, 
was,  even  if  revolutionary,  consistent  with  the  possession  of  unitary 
sovereignty  over  the  same  national  domain  by  the  States  remaining  in 
their  voluntary  union,  145,  150-151,  159. 

But  this  political  constitution  of  the  nation  being  recognized  on  the 
historical  evidence  as  existing  at  the  time,  no  revolutionary  usurpa- 
tion, subjecting  all  the  States  as  political  corporations  to  the  persons 
then  holding  the  general  government  and  their  successors  in  office, 
■was  necessary  to  make  their  action  accord  with  the  theory  of  our 
national  existence,  150,  321,  526-532. 


THE     THEORY 


OF 


OUR   NATIONAL   EXISTENCE. 


THE   THEOEY 


OUR   NATIONAL   EXISTENCE 


CHAPTER    I. 

The  Political  Status  of  the  Eleven  States  of  the  Confedeeact 
IN  Consequence  of  the  Rebellion,  as  described  by  Persons  IM 
THE  Several  Departments  of  the  General  Government,  is 
Opinions  of  Justices  of  the  Supreme  Court,  and  in  the  Lak 
GUAGB  OP  Presidents  and  of  Congress  on  IIeconstbuction. 

It  is  common  to  speak  of  some  battles  as  having  decided 
the  fate  of  empires.  The  rhetorical  force  of  the  expres- 
sion might  lead  us  to  forget,  for  the  moment,  that  military 
success  and  defeat  cannot  in  themselves,  however  decisive 
strategetically,  indicate  any  political  supremacy  for  the 
affirmance  or  denial  of  which  the  victor  and  the  van- 
quished may  respectively  have  taken  up  arms.  A  victory 
is  decisive,  in  the  sphere  of  political  relations,  only  as 
being  that  which  may  have  enabled  one  of  the  parties 
combatant  to  exhibit  peacefully  that  sort  of  action  which 
we  call  government^  and  which,  as  the  exercise  of  dominion 
over  persons  and  territory,  is  more  continuously  directed 
to  civil  than  military  affairs ;  and,  until  this  action  may 
have  ensued,  no  historical  statement  of  the  political  value 
of  antecedent  military  results  can  be  expressed. 

The  defeat  of  the  armies  under  the  command  of  General 
Lee  and  other  military  leaders  commissioned  by  the  con- 


4  EXISTENCE   OF   THE   STATES   IN   UNION, 

Position  of  the  Judicial  Department. 

federacy,  allowed  the  exercise,  within  the  territory  whose 
forcible  separation  from  the  Union  had  been  resisted  by 
arms,  of  whatever  political  authority  had  been  maintained 
by  the  victorious  belligerent.^ 

In  most  parts  of  the  world,  the  administrative  civil 
action  following  after  military  success  would  be  most  ob- 
viously shown  in  the  exercise  of  what  we  are,  in  America, 
accustomed  to  discriminate  as  the  executive  function  of  a 
government ;  after  which  the  legislative  and  judicial 
powers,  when  exercised  in  separation  from  the  executive, 
■would  appear  to  follow.  We  may  conceive,  vaguely,  of 
some  difference  in  respect  to  the  order  of  manifestation  of 
these  functions,  as  following  victory  in  the  field,  in  the 
instances  of  a  government  like  that  of  Russia,  and  one 
similar  to  the  English ;  and  there  might  be  cases  where 
the  legislative  would  appear  as  leading  the  two  other 
functions. 

From  the  organization  of  government,  here,  any  such 
exhibition  of  authority  must  have  occurred  by  the  action  of 
persons  severally  exercising  the  executive,  the  legislative, 
or  the  judicial  function ;  and,  as  the  action  of  the  execu- 
tive and  legislative  is  supposed  to  be  ultimately  subject  to 
judicial  inquiry  under  a  written  constitution,  it  would  ap- 
parently belong  to  the  Supreme  Court  to  indicate,  finally, 
the  nature,  extent,  and  legal  effect  of  any  political  power 
exercised  within  the  territory  affected  by  participation  in 
the  war. 

The  political  question,  as  to  the  existence  of  the  States 
in  the  Union,  which  is  discussed  in  these  pages,  is  sup- 
posed to  be  examined  from  that  point  of  view  in  which  it 
must  present  itself  to  any  person  invested  with  judicial 

1  The  date  of  "  tlie  close  of  tlie  Kebellion  was  announced  by  tlie  Presi- 
dent "  by  proclamation,  bearing  date  Aug.  20,  1866,  and  tiiis  was  recognized 
as  the  official  date  by  Act  of  Congress,  March  2,  1867.  The  authority  of 
the  general  government  had  been  unresisted  in  various  States  at  different 
earUer  dates.     See  United  States  v.  Anderson,  9  Wall.  69,  60. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  5 

Judicial  Opinion  as  Testimony. 

responsibility.  Prominence  has  been  given  to  some  opin- 
ions delivered  by  various  members  of  the  Supreme  Court, 
because,  of  all  statements  liaving  the  stamp  of  public  sta- 
tion, bearing  on  questions  of  the  political  nature  or  status 
of  the  States,  these  are  not  only  the  fullest,  but  such  as, 
above  all  others,  have  been  expressed  with  the  strongest 
presumption  in  favor  of  candid  and  practised  deliberation, 
after  dispassionate  consideration  of  the  best  attainable 
arguments. 

Still,  it  is  herein  assumed  that,  from  the  nature  of  the 
judicial  function,  in  every  country,  it  must  have  limita- 
tions as  a  means  of  determining  political  rights  and  obli- 
gations.^ The  decisions  of  the  court  are  recognized  to  be 
the  final  arbitrament  as  to  all  private  rights  and  obliga- 
tions in  cases  at  law,  however  dependent  upon  political 
doctrine.  But,  on  the  ground  that  the  determination  of 
political  relations  is  beyond  the  scope  of  the  judiciary, 
these  opinions  are  not  here  presented  as  authority^  but  as 
on  the  same  plane,  as  testimony,  with  others  from  some 
other  sources.  There  will  be  no  attempt  to  collate  judi- 
cial decisions,  as  is  done  in  legal  treatises,  with  a  view  of 
deriving  rules  of  law  applicable  to  future  cases. 

The  judiciary  of  the  United  States,  by  assuming  juris- 
diction of  cases  affecting  persons  and  property  within  the 
districts  which  had  been  adversely  occupied  during  the 
war,  did  thereby  assert  the  authority  in  these  localities  of 
the  government  of  the  United  States.  This  assertion  was 
made  also  by  executive  and  legislative  action  at  the  same 
time.  We  may  believe  that,  in  the  popular  estimate,  this 
was  all  that  needed,  or  could,  be  asserted  on  the  part  of 
the  prevailing  combatant. 

^  Compare  Luther  v.  Borden,  7  How.  43,  47,  57  ;  Rose  v.  Hiniely,  4  Cranch, 
272;  Gelston  v.  Hoyt,  3  Wheat.  324,  634;  Williams  v.  The  Suffolk  Ins. 
Co.,  13  Pet.  420;  and  the  citation  of  these  in  White  v.  Hart,  lo  Wall, 
649,  as  noticed  further  on  in  this  chapter. 


6  EXISTENCE   OF  THE   STATES  IN  UNION. 

Tlie  Question  before  the  Judiciary. 

The  question  as  to  the  nature,  extent,  and  effect  of  the 
political  power  vindicated  in  the  war  has,  however,  been 
brought  up  by  the  inquiry,  — whether  the  authority  of  the 
government  of  the  United  States,  having  been  re-established, 
should  be  regarded  as  having  been,  in  the  legal  point  of 
view,  continuously  of  the  same  extent,  within  those  States, 
as  it  had  been  before,  and  as  it  had  been  and  continued  to 
be  within  the  other  States ,-  or  whether  it  then  became 
during  the  war,  and  was,  for  any  time  after,  different ;  and, 
if  so  different,  in  what  respects,  and,  incidentally,  for  what 
reason^  or  upon  what  theory  of  the  existence  of  what  we 
call  the  United  States  of  America. 

This  inquiry,  if  made  judicially,  could  arise  only  in 
actions  at  law  affecting  the  rights  of  private  persons,  and 
not  in  cases  or  controversies  admitting  a  formal  judgment 
as  to  the  political  nature,  effect,  or  consequences  of  the 
public  events  which  had  occurred  ;  containing,  in  terms  of 
legal  decision,  a  statement  of  the  seat  of  ultimate  political 
power  as  between  any  who  might  appear  as  the  claimants. 

In  the  reported  cases  before  the  Supreme  Court,  there 
has  been  a  general  agreement  that  the  States  which  con- 
stituted the  Union  before  1861,  are  now  and  have  been, 
after  an  interval  terminating  at  some  date  later  than  the 
cessation  of  military  operations,  in  the  Union,  as  they  had 
been  before. 

There  has,  however,  been  some  disagreement  as  to  the 
continuation,  during  the  interval,  of  the  political  status  of 
the  States  which  had  passed  ordinances  of  secession,  and 
in  whose  name  as  "  the  Confederate  States  "  armies  had 
been  levied  to  resist  the  civil  and  military  authority  of  the 
government  of  the  United  States. 

The  inquiry  as  to  the  political  nature  of  the  States,  or 
of  their  abilities  or  disabilities  as  affected  by  the  rebellion, 
occurs  most  obviously  in  cases  which  arose,  either  on  some 
claim  of  right  founded  on  acts  of  the  government  of  the 


THEORY   OF   OUE,   NATIONAL   EXISTENCE.  7 

State  Action  distinguished  from  Confederate. 

Confederacy,  or  on  some  claim  founded  on  acts  of  the 
government  of  some  one  of  the  States. 

With  regard  to  the  first  of  these  classes,  it  is  enough,  for 
the  present  purpose,  to  notice  that  the  Supreme  Court  has, 
with  little  or  no  difference  of  opinion,  held  that  such  claims 
cannot  be  sustained  in  any  case.  Though  ruling  that  it 
had  existed  as  a  recognized  belligerent  military  force,^  or 
de  facto  government  so  far  as  military  operations  were  in- 
volved, the  court  holds  the  legislative  acts  of  the  Confeder- 
ate government  null  and  void.^ 

In  support  of  this  view,  the  court  argues  from  the  pro- 
hibition in  the  Constitution  against  any  alliances  or  leagues 
between  the  States.^ 

In  several  cases  of  this  class,  it  is  also  stated  that  this 
decision  is  not  intended  to  apply  at  all  to  cases  of  claims 
founded  on  the  acts  of  any  one  of  the  States  which  had 
sustained  the  Confederacy.^ 

In  the  cases  arising  on  claims  founded  on  acts  of  the 
State  governments,  it  has  invariably  been  assumed  that 
some  acts  of  such  State  governments  must  be  held  valid, 
while  others  may  have  been  void.^ 

1  Hanauer  v.  Woodruff,  15  Wall.  439;  Williams  v.  Bruffy,  6  Otto,  176. 

'-'  Tliorington  v.  Smith,  8  Wall.  1,9;  Delmas  v.  Ins.  Co.,  14  Wall.  65 ; 
Horn  V.  Lockliart,  17  Wall.  571  ;  Dewing  v.  Perdicaries,  6  Otto,  193;  Sprott 
V.  United  States,  20  Wall.  459  ;  Williams  v.  Bruffy,  6  Otto,  176 ;  also  Short- 
ridge  V.  Macon,  District  N.  C,  Johnson's  Chase's  Decisions,  144 ;  and 
Keppel's  Adm'r  ;;.  Petersburg  R.  R.,  District  Va.  ib.  167.  Unless  there  is 
an  exception  in  a  qualified  recognition  of  the  currency  of  the  Confederate 
government,  as  valid,  in  payments  and  contracts,  to  a  certain  extent.  Thor- 
ington  V.  Smith,  8  Wall.  1;  Delmas  v.  Ins.  Co.,  14  Wall.  665;  Hanauer  v. 
Woodruff,  15  Wall.  439.  The  Confederate  notes  cases,  19  Wall.  548; 
Keppel's  Adm'r  v.  Petersburg  R.  R.,  Johnson's  Chase's  Decisions,  210. 

^  "  The  organization  whose  enactment  is  pleaded  cannot  therefore  be 
regarded  in  this  court  as  having  any  lawful  existence."  (Opinion  by  Field, 
J.,  no  dissent),  Wihiams  v.  Bruffy,  6  Otto,  176,  182. 

•«  United  States  v.  Keehler,  9  Wall.  83 ;  Home  v.  Lockhart,  17  Wall.  581 ; 
Williams  v.  Bruffy,  6  Otto,  192. 

6  Horn  V.  Lockhart,  17  Wall.  570 ;  United  States  v.  Ins.  Cos.,  22  Wall. 
99;  Sprott  v.  United  States,  20  Wall.  459;  with  the  other  cases  already 
cited. 


8  EXISTENCE  OF   THE   STATES   IN   UNION. 

Question  of  a  Presumption.    Texas  v.  White. 

In  these  cases,  the  salient  question  has  generally  been  as 
to  the  existence  of  any  presumption  against  the  validity  of 
any  claim  founded  on  the  action  of  such  government,  aris- 
ing from  the  general  facts  of  the  rebellion  and  the  position 
of  such  government,  during  the  war  and  the  so-called  Me- 
construction  period. 

It  is  for  the  most  part  in  reference  to  this  presumption 
that  those  statements  bearing  on  the  political  question 
above  stated,  as  to  the  existence  of  the  States,  are  made 
by  various  members  of  the  court,  from  which,  whether  de- 
livered in  the  name  of  the  majority  or  as  individual  dis- 
senting opinions,  passages  are  here  cited. 

In  the  case  of  Texas  v.  White,  decided  December  term, 
1868,  7  Wall.  700,  the  question  as  to  this  presumption  does 
not  appear ;  because,  even  admitting  the  presumption  in 
favor  of  any  act  of  the  local  authorities,  the  court  con- 
sidered the  alleged  facts  as  showing  that  the  transfer  upon 
which  the  merits  of  the  case  depended  had  been  made  in 
aid  of  the  rebellion.     lb.  733. 

In  this  case  of  Texas  v.  White,  suit  was  brought  in 
the  name  of  the  State  of  Texas,  b}'  the  government  then 
existing  under  the  State  Constitution  adopted  in  1866 ; 
which  was  one  of  the  State  governments  declared  illegal 
by  Congress,  in  the  Acts  of  March  2,  1867,  and  July  19, 
1867.1 

The  object  of  the  suit  was  to  recover  certain  bonds  trans- 
ferred by  the  local  authorities  during  the  rebellion.  But 
a  preliminary  question  of  the  jurisdiction  of  the  court  was 
raised  by  tlie  objection,  "that  the  State  having  severed  her 
relations  with  a  majority  of  the  States  of  the  Union,  and 
having  by  her  ordinance  of  secession  attempted  to  throw 

1  A  condensed  narrative  of  tlie  military  and  civil  organizations  wliicli,  up 
to  the  date  of  this  case,  had  existed  under  the  general  policy  pursued  by 
Presidents  Lincoln  and  Johnson  is  given  by  the  reporter  in  his  statement  of 
the  case.     lb.  702-708. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  9 

Texas  v.  White.     Opinion  by  the  Chief  Justice. 

off  her  allegiance  to  the  Constitution  and  government  of 
the  United  States,  had  so  far  changed  her  status  as  to  be 
disabled  from  prosecuting  suits  in  the  national  courts." 

Having  stated  the  objection,  Mr.  Chief  Justice  Chase, 
delivering  the  opinion  of  the  court,  proceeds  to  say,  — 

"  If,  therefore,  it  is  true  that  the  State  of  Texas  was  not  at  the 
time  of  filing  this  bill,  or  is  not  now,  one  of  the  United  States,  we 
have  no  jurisdiction  of  this  suit,  and  it  is  our  duty  to  dismiss  it." 
lb.  719. 

From  the  frequent  reference,  with  approval,  which  has 
been  made  to  this  opinion  of  the  court,  it  should  seem  that, 
if  any  political  doctrine,  bearing  on  this  point,  can  be 
got  out  of  it  by  legal  hermeneutics,  it  has  been  doctrine 
generally  accepted  by  the  national  judiciary. 

Bearing  in  mind  the  question  here  considered  by  the 
court,  it  is  important  to  know,  with  some  precision,  what 
idea  the  Chief  Justice  attached  to  the  term  a  State.  For 
this  reason,  I  give  here  some  passages  not  so  often  cited  in 
later  cases,  but  which  may  be  noticed  further  on  in  this 
inquiry. 

The  Chief  Justice  remarks,  lb.  720,  — 

"  Some  not  unimportant  aid,  however,  in  ascertaining  the  true 
sense  of  the  Constitution,  may  be  derived  from  considering  what  is 
the  correct  idea  of  a  State,  apart  from  any  union  or  confederation 
with  other  States.  The  poverty  of  language  often  compels  the 
employment  of  terms  in  quite  different  significations ;  and  of  this 
hardly  any  example  more  signal  is  to  be  found  than  in  the  use  of 
the  word  we  are  now  considering.  It  would  serve  no  useful  pur- 
pose to  attempt  an  enumeration  of  all  the  various  senses  in  which 
it  is  used.     A  few  only  need  be  noticed. 

"  It  describes  sometimes  a  people  or  community  of  individuals 
united  more  or  less  closely  in  political  relations,  inhabiting  tem- 
porarily or  permanently  the  same  country ;  often  it  denotes  only 
the  country  or  territorial  region,  inhabited  by  such  a  community  ; 
not  unfrequently  it  is  applied  to  the  government  under  which  the 


10  EXISTENCE   OF   THE   STATES   IN  UNION. 

Texas  v.  White.     Definition  of  Word  State. 

people  live ;  at  other  times  it  represents  the  combined  idea  of  people, 
territory,  and  government. 

"  It  is  not  difficult  to  see  that  in  all  these  senses  the  primary 
conception  is  that  of  a  people  or  community.  The  people,  in  what- 
ever territory  dwelling,  either  temporarily  or  permanently,  and 
whether  organized  under  a  regular  government,  or  united  by  looser 
and  less  definite  relations,  constitute  the  state. 

This  is  undoubtedly  the  fundamental  idea  upon  which  the  repub- 
ican  institutions  of  our  own  country  are  established.  This  was 
stated  very  clearly  by  an  eminent  judge -^  in  one  of  the  earliest 
cases  adjudicated  by  this  court,  and  we  are  not  aware  of  any  thing, 
ia  any  subsequent  decision,  of  a  different  tenor. 

"  In  the  Constitution  the  term  state  frequently  expresses  the 
combined  idea  just  noticed,  of  people,  territory,  and  government. 
A  state,  in  the  ordinary  sense  of  the  Constitution,  is  a  politi- 
cal community  of  free  citizens,  occupying  a  territory  of  defined 
boundaries,  and  organized  under  a  government  sanctioned  and 
limited  by  a  written  constitution,  and  established  by  the  con- 
sent of  the  governed.  It  is  the  union  of  such  states  under  a 
common  constitution  which  forms  the  distinct  and  greater  political- 
unit  which  that  Constitution  designates  as  the  United  States,  and 
makes  of  the  people  and  states  which  compose  it  one  people  and 
one  country. 

"  The  use  of  the  word  in  this  sense  hardly  requires  further  re- 
mark. In  the  clauses  which  impose  prohibitions  upon  the  States 
in  respect  to  the  making  of  treaties,  emitting  of  bills  of  credit,  and 
laying  duties  of  tonnage,  and  which  guarantee  to  the  States  repre- 
sentation in  the  House  of  Representatives  and  in  the  Senate,  are 
found  some  instances  of  this  use  in  the  Constitution.  Others  will 
occur  to  every  mind. 

"  But  it  is  also  used  in  its  geographical  sense,  as  in  the  clauses 
which  require  that  a  representative  in  Congress  shall  be  an  inhabi- 

1  Citing  Penhallow  v.  Doane,  3  Dall.  93,  in  whicli  Iredell,  J.,  said  : 
"  A  distinction  was  talicn  at  the  bar  between  a  State  and  the  people  of  the 
Slate.  It  is  a  distinction  I  am  not  capable  of  compreliending."  He  also 
speaks  of  "  all  the  citizens  which  compose  that  State,"  meaning  probably, 
not  the  persons  liolding  the  elective  franchise,  the  political  people,  but 
the  inhabitants  generally  ;  as  he  says,  "  In  such  governments,  therefore,  the 
sovereignty  resides  in  the  great  body  of  the  people  ...  in  their  politic 
capacity  only,"  and  "  the  whole  community  which  forms  such  body  politic." 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  11 

Texas  v.  White.     Nature  of  the  Union. 

tant  of  the  State  in  which  he  shall  be  chosen,  and  that  the  trial  of 
crimes  shall  be  held  in  the  State  where  committed, 

"  And  there  are  instances  in  which  the  principal  sense  of  the 
word  seems  to  be  that  primary  one  to  which  we  have  adverted,  of  a 
people  or  political  community,  as  distinguished  from  a  government. 

"  In  this  latter  sense,  the  word  seems  to  be  used  in  the  clause 
which  provides  that  the  United  States  shall  guarantee  to  every 
State  in  the  Union  a  republican  form  of  government,  and  shall 
protect  each  of  them  against  invasion. 

"  In  this  clause  a  plain  distinction  is  made  between  a  State  and 
the  government  of  a  State. 

"  Having  thus  ascertained  the  senses  in  which  the  word  State 
is  employed  in  the  Constitution,  we  will  proceed  to  consider  the 
proper  application  of  what  has  been  said." 

The  Chief  Justice  proceeds,  lb.  pp.  722-724,  to  describe 
the  political  transactions,  in  the  State,  intended  to  carry 
out  the  design  of  secession,  and  asks,  lb.  724, — 

"  Did  Texas,  in  consequence  of  these  acts,  cease  to  be  a  State  ? 
Or,  if  not,  did  the  State  cease  to  be  a  member  of  the  Union  ? 

"  It  is  needless  to  discuss,  at  length,  the  question  whether  the 
right  of  a  State  to  withdraw  from  the  Union  for  any  cause,  re- 
garded by  herself  as  sufficient,  is  consistent  with  the  Constitution  of 
the  United  States. 

"  The  Union  of  the  States  never  was  a  purely  artificial  and 
arbitrary  relation.  It  began  among  the  Colonies,  and  grew  out  of 
common  origin,  mutual  sympathies,  kindred  principles,  similar  inter- 
ests, and  geographical  relations.  It  was  confirmed  and  strengthened 
by  the  necessities  of  war,  and  received  definite  form  and  character 
and  sanction  from  the  Articles  of  Confederation.  By  these  the 
Union  was  solemnly  declared  to  '  be  perpetual.'  And  when  these 
Articles  were  found  to  be  inadequate  to  the  exigencies  of  the  coun- 
try, the  Constitution  was  ordained  '  to  form  a  more  perfect  Union.' 
It  is  difficult  to  convey  the  idea  of  indissoluble  unity  more  clearly 
than  by  these  words.  AVhat  can  be  indissoluble  if  a  perpetual 
Union,  made  more  perfect,  is  not. 

"  But  the  perpetuity  and  indissolubility  of  the  Union  by  no 
means  implies  the  loss  of  distinct  and  individual  existence,  or  of  the 
right  of  self-government  by  the  States.  .  .  .  And  we  have  already 


12  EXISTENCE   OF   THE   STATES   IN  UNION. 

Texas  v.  White.     Texas  continued  a  State. 

had  occasion  to  remark,  at  this  term,^  that  'the  people  of  each  State 
compose  a  State,  having  its 'own  government,  and  endowed  with  all 
the  functions  essential  to  separate  and  independent  existence  ; '  and 
that  '  without  the  States  in  union,  there  could  be  no  such  political 
body  as  the  United  States.'  Not  only,  therefore,  can  there  be  no  loss 
of  separate  and  independent  autonomy  to  the  States  through  their 
union  under  the  Constitution  ;  but  it  may  be  not  unreasonably  said 
that  the  preservation  of  the  States,  and  the  maintenance  of  their 
governments,  are  as  much  within  the  design  and  care  of  the  Con- 
stitution, as  the  preservation  of  the  Union  and  the  maintenance  of 
the  National  government.  The  Constitution,  in  all  its  provisions, 
looks  to  an  indestructible  Union,  composed  of  indestructible  States. 

"  When,  therefore,  Texas  became  one  of  the  United  States,  she 
entered  into  an  indissoluble  relation.  .  .  .  There  was  no  place  for 
reconsideration  or  revocation,  except  through  revolution,  or  through 
consent  of  the  States. 

"  Considered  therefore  as  transactions  under  the  Constitution, 
the  ordinance  of  secession,  adopted  by  the  convention,  and  ratified 
by  a  majority  of  the  citizens  of  Texas,  and  all  the  acts  of  her 
legislature  intended  to  give  effect  to  tliat  ordinance,  were  abso- 
lutely null.  They  were  utterly  without  operation  in  law.  The 
obligations  of  the  State,  as  a  member  of  the  Union,  and  of  every 
citizen  of  the  State,  as  a  citizen  of  the  United  States,  remained 
perfect  and  unimpaired.  ■  It  certainly  follows  that  the  State  did 
not  cease  to  be  a  State,  nor  her  citizens  to  be  citizens  of  the  Union. 
If  this  were  otherwise,  the  State  must  have  become  foreign,  and  her 
citizens  foreigners.  The  war  must  have  ceased  to  be  a  war  for  the 
suppression  of  the  rebellion,  and  must  have  become  a  war  for  con- 
quest and  subjugation. 

"  Our  conclusion,  therefore,  is  that  Texas  continued  to  be  a 
State,  and  a  State  of  the  Union,  notwithstanding  the  transactions 
to  which  we  have  referred.  And  this  conclusion,  in  our  judgment, 
is  not  in  conilict  with  any  act  or  declaration  of  any  department  of 
the  National  government,  but  entirely  in  accordance  with  the  whole 
series  of  such  acts  and  declarations  since  the  first  outbreak  of  the 
rebellion." 

While  thus  affirming  the  existence  of  the  State  as  a  con- 

1  The  County  of  Lane  v.  The  State  of  Oregon,  7  Wall.  76. 


THEORY   OF   OUE    NATIONAL   EXISTENCE.  13 

Texas  v.  White.     Position  of  the  State  Government. 

stituent  member  of  the  United  States,  the  Chief  Justice 
speaks  of  the  existence  of  the  State  governments  as  a 
different  matter. 

The  opinion  continues  from  the  last  citation :  — 

"  But  in  order  to  the  exercise,  by  a  State,  of  the  right  to  sue  in 
this  court,  there  needs  to  be  a  State  government,  competent  to  rep- 
resent the  State  in  its  relations  with  the  National  government,  so 
far,  at  least,  as  the  institution  and  prosecution  of  a  suit  is  con- 
cerned." 

The  Chief  Justice  proceeds,  lb.  727,  to  hold  that  "  the 
governmental  relations  of  Texas  to  the  Union  "  did  not 
remain  "unaltered,"  and  in  his  argument  compares  the 
States  to  citizens  under  the  law  of  any  one  of  the  States :  — 

"  The  obligations  of  allegiance  to  the  State,  and  of  obedience  to 
her  laws,  sul)ject  to  the  Constitution  of  the  United  States,  are  bind- 
ing upon  all  citizens,  whether  faithful  or  unfaithful  to  them  ;  but 
the  relations  which  subsist  while  these  obligations  are  performed, 
are  essentially  different  from  those  which  arise  when  they  are  dis- 
regarded and  set  at  nought.  And  the  same  must  necessarily  be 
true  of  the  obligations  and  relations  of  States  and  citizens  to  the 
Union.  .  .  .  All  admit  that,  during  this  condition  of  civil  war,  the 
rights  of  the  State  as  a  member,  and  of  her  people  as  citizens  of 
the  Union,  were  suspended.  The  government  and  tlie  citizens  of 
the  State,  refusing  to  recognize  their  constitutional  obligations,  as- 
sumed the  character  of  enemies,  and  incurred  the  consequences  of 
rebellion."  ^ 

The  portion  of  the  opinion  which  next  follows,  lb.  727- 
732,  has  a  political  interest,  as  being  a  recognition  of  the 
validity,  if  not  the  policy,  of  President  Johnson's  meas- 
ures in  appointing  provisional  governors,  and  inaugurating 
new  constitutions  and  State  governments.  But,  consider- 
ing the  action  of  the  President  as  "  provisional,"  the  Chief 
Justice  also  justifies  the  action  of  Congress,  in  "the  acts 

1  Other  passages  from  this  part  of  the  opinion  as  cited  by  Mr.  Justice 
Bradley,  in  Keith  v.  Clark,  will  be  also  found  in  this  chapter. 


14  EXISTENCE  OF   THE   STATES   IN  UNION. 

Texas  v.  White.     Guaranty  of  Republican  Government. 

known  as  the  Reconstruction  Acts,"  as  founded  on  power 
derived  from  the  constitutional  guaranty  of  a  republican 
government  to  each  State. 

As  to  this  portion  of  the  opinion,  it  is  of  some  importance 
to  bear  in  mind  Chief  Justice  Chase's  previous  definition  of 
tlie  word  /State,  as  employed  in  that  guaranty  ;  under  which 
he  may,  perhaps,  have  regarded  Texas  as  a  State  only  as 
any  territory  of  the  United  States,  with  definite  bounda- 
ries, might  be  called  a  State. ^ 

In  connection  with  this  he  says,  in  reference  to  the 
emancipation  proclamation  and  the  amendment  prohibit- 
ing slavery,  together  with  the  conditions  of  amnesty,  — 

"Wherever  the  National  forces  obtained  coutrol,  the  slaves  be- 
came freemen.  .  .  . 

"  The  new  freemen  necessarily  became  part  of  the  people,  and 
the  people  still  constituted  the  State ;  for  States,  like  individuals, 
retain  their  identity,  though  changed  to  some  extent  in  their  con- 
stituent elements.  And  it  was  the  State,  thus  constituted,  which  was 
now  entitled  to  the  benefit  of  the  constitutional  guaranty."    lb.  728. 

If  the  court,  in  this  case,  considered  Texas  as  a  proper 
subject  for  the  benefit  of  the  constitutional  guaranty  only 
as  any  territory,  with  sufficient  population,  may  be  entitled 
to  the  same,  what  is  the  value  of  the  often  cited  expres- 
sion, "  an  indestructible  Union  composed  of  indestructible 
States"? 

■If  it  was  intended  only  to  assert  that  Texas  and  its  in- 
habitants had  not  become  foreign  country  and  alien  nation, 
—  this  Avas  something  assumed  by  the  government  from 
the  first,  and  was  equally  affirmed  by  those  who  would 
regard  the  States  as  conquered,  and  by  the  advocates  of 
the  State  suicide  doctrine. 

The  merits  of  the  case,  as  a  claim  for  property,  had  not 
been  considered  in  this  portion  of  the  opinion.     The  ma- 

1  Compare  the  dissenthig  opinion  by  Grier,  J.,  post,  p.  16. 


THEOEY   OF   OUR   NATIONAL  EXISTENCE.  15 

Texas  ?».  White.     De  facto  Government. 

jority  supported  the  claim  of  the  State,  as  represented  by 
the  then  existing  government,  to  recover  the  bonds  which 
had  been  transferred  to  the  defendants,  in  1865-66,  by  the 
local  authorities  supporting  the  Confederacy  ;  after  the  leg- 
islature had  repealed  an-  earlier  State  law  restricting  their 
assignment.    In  this  part  of  the  opinion,  it  is  said,  lb.  732,  — 

"The  legislature  of  Texas,  at  the  time  of  the  repeal,  constituted 
one  of  the  departments  of  a  State  government  established  in  hos- 
tility to  the  Constitution  of  the  United  States.  It  cannot  be  re- 
garded, therefore,  in  the  courts  of  the  United  States,  as  a  lawful 
legislature,  or  its  acts  as  lawful  acts.  And  yet,  it  is  an  historical 
fact  that  the  government  of  Texas,  then  in  full  control  of  the  State, 
was  its  only  actual  government ;  and  certainly,  if  Texas  had  been 
a  separate  State,  and  not  one  of  the  United  States,  the  new  govern- 
ment having  displaced  the  regular  authority,  and  having  estab- 
lished itself  in  the  customary  seats  of  power,  and  in  the  exercise  of 
the  ordinary  functions  of  administration,  would  have  constituted,  in 
the  strictest  sense  of  the  words,  a  de  facto  government,  and  its  acts, 
during  the  whole  period  of  its  existence,  as  such,  would  be  effectual, 
and,  in  almost  all  respects,  valid.  And,  to  some  extent,  this  is  true 
of  the  actual  government  of  Texas,  though  unlawful  and  revolu- 
tionary, as  to  the  United  States. 

"  It  is  not  necessary  to  attempt  any  exact  definitions,  within 
which  the  acts  of  such  a  State  government  must  be  treated  as  valid 
or  invalid." 

The  opinion  briefly  states  that,  while  action  affecting 
ordinary  civil  relations  is,  generally  speaking,  valid,  in 
this  particular  case,  the  "  purpose  "  of  the  act  of  the  local 
legislature  authorizing  the  sale,  "  was  undoubtedly  unlaw- 
ful, for  the  acts  which  it  contemplated  are,  within  the  express 
definition  of  the  Constitution,  treasonable."     lb.  733. 

The  opinion  concludes,  — 

"On  the  whole  case,  therefore,  our  conclusion  is,  that  the  State 
of  Texas  is  entitled  to  the  relief  sought  by  her  bill,  and  a  decree 
must  be  made  accordingly."     lb.  736. 

Notwithstanding  the  length  of  these  citations  from  the 


16  EXISTENCE   OF   THE   STATES   IN   UNION. 

Texas  v.  White.    Dissenting  Opinions. 

opinion  of  the  court,  the  positions  taken  by  three  of  its 
members  are  too  important,  in  the  political  aspect,  not 
to  be  here  noticed,  on  their  own  account  and  as  elucidat- 
ing, by  contrast,  the  opinion  delivered  by  Chase,  C.  J. 
Mr.  Justice  Grier  dissented,  both  as  to  the  question  of 
jurisdiction  and  that  on  the  merits.  In  the  separate  opin- 
ion delivered  by  him,  he  observes  :  — 

"  The  original  jurisdiction  of  this  court  can  be  invoked  only  by 
one  of  the  United  States.  The  Territories  have  no  such  right  con- 
ferred on  them  by  the  Constitution,  nor  have  the  Indian  tribes  who 
are  under  the  protection  of  the  military  authorities  of  the  govern- 
ment. 

"  Is  Texas  one  of  these  United  States  ?  Or  was  she  such  at  the 
time  this  bill  was  filed,  or  since  ? 

"  This  is  to  be  decided  as  a  political  fact,  not  as  a  legal  fiction. 
This  court  is  bound  to  know  and  notice  the  public  history  of  the 
nation."     lb.  737. 

Mr.  Justice  Grier  cited  here  the  language  of  Marshall, 
C.  J.,  in  Hepburn  v.  Elzey,  2  Cranch,  452,  as  to  what 
constitutes  a  State  of  the  United  States,^  as  against  the 
view  of  a  State  contended  for  by  counsel,  and  supported 
apparently  in  the  opinion  of  the  court,  and  says  of  the 
political  situation  at  that  time,  — 

"  It  is  true  that  no  organized  rebellion  now  exists  there,  and  the , 
courts  of  the  United  States  now  exercise  jurisdiction  over  the  peo- 
ple of  that  province.  But  this  is  no  test  of  the  State's  being  in  the 
Union ;  Dacotah  is  no  State,  and  yet  the  courts  of  the  United 
States  administer  justice  there  as  they  do  in  Texas.  The  Indian 
trilbes  who  are  governed  by  military  force  cannot  claim  to  be  States 
of  the  Union.  Wherein  does  the  condition  of  Texas  differ  from 
theirs  ?  "     lb.  738. 

Mr.  Justice  Grier  protested  against  any  charge  of  incon- 
sistency with  his  previous  judicial  opinions,  referring  his 

1  The  same  view  had  been  taken  in  Scott  v.  Jones,  5  How.  3J;3,  377  ; 
Cherokee  Nation  v.  Georgia,  5  Pet.  118. 


THEORY  OF   OUR   NATIONAL  EXISTENCE.  17 

Texas  v.  White.     Opinion  of  Grier,  J. 

conclusion  in  this  case  to  his  acquiescence  in  the  position 
taken  by  the  government. 

"I  do  not  consider  myself  bound  to  express  any  opinion,  judi- 
cially, as  to  the  constitutional  rights  of  Texas  to  exercise  the  rights 
and  privileges  of  a  State  of  this  Union,  or  the  power  of  Congress 
to  govern  her  as  a  conquered  province,  to  subject  her  to  military 
domination  and  keep  her  in  pupilage.  I  can  only  submit  to  the 
fact  as  decided  by  the  political  position  of  the  government,  and  I 
am  not  disposed  to  join  in  any  essay  to  prove  Texas  to  be  a  State 
of  the  Union,  when  Congress  have  decided  that  she  is  not.  It  is 
a  question  of  fact,  I  repeat,  and  of  fact  only.  Politically,  Texas  is 
not  a  State  in  this  Union.  Whether  rightfully  out  of  it  or  not,  is 
a  question  not  before  the  court."     lb.  739. 

These  remarks  are  addressed  to  the  question  of  jurisdic- 
tion. But,  on  the  question  of  right  of  recovery,  Judge 
Grier  also  dissented.     In  this  connection,  he  said,  — 

"  Having  relied  upon  one  fiction,  namely,  that  she  is  a  State  in 
the  Union,  she  now  relies  upon  a  second  one,  which  she  wishes  the 
court  to  adopt,  that  she  was  not  a  State  at  all  during  the  five  years 
that  she  was  in  rebellion.  She  now  sets  up  the  plea  of  insanity, 
and  asks  the  court  to  treat  all  her  acts  made  during  the  disease  as 
void. 

"We  have  had  some  very  astute  logic  to  prove  that,  judicially, 
she  was  not  a  State  at  all,  although  governed  by  her  own  legisla- 
ture and  executive  as  '  a  distinct  political  body.' 

"  The  ordinance  of  secession  was  adopted  by  the  convention,  on 
the  18th  of  February,  1861  ;  submitted  to  a  vote  of  the  people  and 
ratified  by  an  overwhelming  majority.  I  admit  that  this  was  a  very 
ill-advised  measure.  Still  it  was  the  sovereign  act  of  a  sovereign 
State,  and  the  verdict  on  the  trial  of  this  question  '  by  battle,'  ^  as 

1  In  the  foot-note,  Prize  Cases,  2  Black.  673.  The  opinion  of  the  court 
in  that  case  had  been  delivered  by  Mr.  Justice  Grier,  and,  from  his  lan- 
guage in  that  instance,  it  must  be  inferred  that  he  held  that  view  of  tlie 
Union  which  regards  each  State  as  always  being  completely  and  severally 
sovereign,  and  the  war  as  an  international  war  throughout.  His  expressions, 
in  Texas  v.  White,  must  be  understood  as  in  harmony  with  the  same  doctrine, 
and  it  must  be  supposed  that  he  regarded  the  State  as  territory,  held  by  con- 
quest. 


18  EXISTENCE   OF  THE   STATES   IN   UNION. 

Texas  i'.  White.    Positions  of  Swayne  and  Miller,  JJ. 

to  her  right  to  secede,  has  been  against  her.  But  that  verdict  did 
not  settle  any  question  not  involved  in  the  case.-^  It  did  not  settle 
the  question  of  her  right  to  plead  insanity,"  &c.     lb.  740. 

Mr.  Justice  Swayne  said  only,  ^  — 

"  I  concur  with  my  brother  Grier  as  to  the  incapacity  of  the 
State  of  Texas,  in  her  present  condition,  to  maintain  an  original 
suit  in  this  court.  The  question,  in  ni)'  judgment,  is  one  in  relation 
to  which  this  court  is  bound  by  the  action  of  the  legislative  depart- 
ment of  the  government. 

''  Upon  the  merits  of  the  case,  I  agree  with  the  majority  of  my 
brethren. 

•'  I  am  authorized  to  say  that  my  brother  Miller  unites  with  me 
in  these  views."     lb.  741. 

In  White  v.  Hart,  13  Wall.  646,  the  question  of  the  ca- 
pacity of  a  State,  as  affected  by  the  rebellion,  was  pre- 
sented, in  an  aspect  still  more  clearly  political,  by  the 
opinion  of  the  court,  delivered  by  Mr.  Justice  Swayne, 
who,  in  his  statement  of  the  case,  says,  lb.  648,  — 

"  From  the  close  of  the  rebellion  until  Georgia  was  restored  to 
her  normal  relations  and  functions  in  the  Union,  she  was  governed 
under  the  laws  of  the  United  States  known  as  the  Reconstruction 
Acts.  Under  these  laws  her  present  constitution  was  framed, 
adopted,  and  submitted  to  Congress." 

After  recapitulating  the  "  terms  of  her  rehabilitation  " 
requiring  the  modification  of  this  constitution,  under  the 
measures  of  Congress  ending  in  the  Act  July  15,  1870  (16 
U.  S.Stat.  363),  he  says,— 

"  This  act  removed  the  last  of  the  disabilities  and  penalties  which 
were  visited  upon  her  for  her  share  of  the  guilt  of  the  rebellion. 

1  I  suppose  Mr.  Justice  Grier  to  have  meant,  —  not  involved  in  that 
issue,  viz.,  whether  the  State  had,  or  had  not,  the  right  to  secede. 

2  It  is  specially  important  to  notice  the  position  taken  in  this  case  by 
Justices  Swayne  and  Miller,  because  they  severally  delivered  the  opinion  of 
the  court  in  the  two  later  cases,  from  which  I  propose  to  cite  very  fully, 
White  V.  Hart,  and  Keith  v.  Clark. 


I 


THEORY   OF   OUR   NATIONAL   EXISTENCE  19 

White  (".  Hart.     Opinion  of  the  Court. 

The  condonation    by  the  national  government  thus  became  com- 
plete."    lb.  048. 

In  this  case,  the  question  presented  was  as  to  the  pro- 
tection of  a  contract  made  in  1859  against  a  provision  in 
the  State  constitution  of  Georgia  of  1868,  against  enforc- 
ing "  any  debt,  the  consideration  of  which  was  a  slave  or 
the  hire  thereof." 

The  point  was  taken  —  that  the  cLause  in  the  Constitu- 
tion of  the  United  States  against  impairing  the  obligation 
of  contracts  did  not  apply,  — 

Because,  as  a  "  first  proi:)osition,"  at  the  adoption  of  this 
state  constitution,  "  Georgia  was  not  a  State  of  the  Union  ; 
that  she  had  sundered  her  connection  as  such,  and  was 
a  conquered  territory,  wholly  at  the  mercy  of  the  con- 
queror." 

And  because,  as  a  "  third  proposition,"  her  constitution 
was  adopted  under  the  dictation  and  coercion  of  Congress," 
so  that  the  prohibition  in  the  State  constitution  was  valid, 
as  being  the  action  of  Congress.     lb.  649. 

As  to  the  last  of  these  propositions,  the  court  says,  — 

"  The  third  of  these  propositions  is  clearly  unsound,  and  requires 
only  a  few  remarks.  Congress  authorized  the  State  to  frame  a  new 
constitution,  and  she  elected  to  proceed  within  the  scope  of  the  au- 
thority conferred.  The  result  was  submitted  to  Congress  as  a  vol- 
untary and  valid  offering,  and  was  so  received  and  so  recognized  in 
the  subsequent  action  of  that  body.  The  State  is  estopped  to  assail 
it  upon  such  an  assumption.  Upon  the  same  grounds  she  might 
deny  the  validity  of  her  ratification  of  the  constitutional  amend- 
ments. The  action  of  Congress  upon  the  subject  cannot  be  in- 
quired into.  The  case  is  clearly  one  in  which  the  judicial  is  bound 
to  follow  the  action  of  the  political  department  of  the  government, 
and  is  concluded  by  it."     lb.  649.^ 

1  A  note  in  the  report  refers  to  the  cases  cited,  ante,  p.  5,  note. 

Here  the  court,  as  I  understand  it,  only  assumes  that  Congress  must  have 
had  sufficient  evidence.  Furtlier  on  it  seems  to  be  lieid  that  the  court  is 
obliged  to  accept  any  view  of  the  status  of  tlie  States  taken  by  Congress.     I 


20  EXISTENCE  OF  THE   STATES    IK  UNION. 

White  y.  Hart.     Opinion  by  Swayne,  J. 

The  view  of  the  nature  of  the  States  and  the  Union,  con- 
tained in  the  opinion  of  the  court,  is  particularly  notice- 
able for  being  presented  as  in  harmony  with  the  views  of 
Congress  in  the  Reconstruction  Acts.  The  court  says, 
lb.  649,— 

"  The  subject  presented  by  the  first  proposition  has  been  consid- 
ered, under  some  of  its  aspects,  several  times  by  this  court.  We 
need  do  little  more  upon  this  occasion  than  to  reaffirm  the  views 
heretofore  expressed,  and  add  such  further  remarks  as  are  called 
for  by  the  exigencies  of  the  case  before  us. 

"  The  National  Constitution  was,  as  its  preamble  recites,  ordained 
and  established  by  the  people  of  the  United  States.  It  created,  not 
a  confederacy  of  States,  but  a  government  of  individuals.  It  as- 
sumed that  the  government  and  the  Union  which  it  created,  and  the 
States  which  were  incorporated  into  the  Union,  would  be  indestruc- 
tible and  perpetual ;  and,  as  far  as  human  means  could  accomplish 
such  a  work,  it  intended  to  make  them  so.  .  .  .  For  all  the  pur- 
poses of  the  National  government,  the  people  of  the  United  States 
are  an  integral,  and  not  a  composite  mass,  and  their  unity  and  iden- 
tity, in  this  view  of  the  subject,  are  not  affected  by  their  segrega- 
tion by  State  lines,  for  the  purposes  of  State  government  and  local 
administration.  Considered  in  this  connection,  the  States  are  or- 
ganisms for  the  performance  of  their  appropriate  functions  in  the 
vital  system  of  the  larger  polity,  of  which,  in  this  aspect  of  the  sub- 
ject, they  form  a  part,  and  which  would  perish  if  they  were  stricken 
from  existence  and  ceased  to  perform  their  allotted  work.  The 
doctrine  of  secession  is  a  doctrine  of  treason.  ...  In  some  respects 
it  [the  rebellion]  was  not  unlike  the  insurrection  of  a  county  or 
other  municipal  division  Of  territory  against  the  State  to  which  it 
belongs.  .  .  . 

"  The  power  exercised  in  putting  down  the  late  rebellion  is  given 
expressly  by  the  Constitution  to  Congress.     That  body  made  the 

have,  ante,  p.  5,  recognized  a  limitation  of  the  judicial  function  on  the  polijti- 
cal  question  :  but  not  meaning  to  the  extent  tliat  all  political  action  of  the 
legislature  is  binding  on  the  court.  The  recognition  of  a  "  political  depart- 
ment "  determining  the  nature  of  the  constitutional  government  for  the  judi- 
ciary, is,  I  think,  a  novelty.  Tlie  boast  used  to  be  that  the  court  was  the 
superior,  or,  at  least,  independent.     Comp.  Story  Comni.  ch.  88. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  21 

White  V.  Hart.     Opinion  of  the  Court. 

laws,  and  the  President  executed  them.  The  granted  power  car- 
ried with  it  not  only  the  right  to  use  the  requisite  means,  but  it 
i-eached  farther,  and  carried  with  it  also  authority  to  guard  against 
the  renewal  of  the  conflict,  and  to  remedy  the  evils  arising  from  it ; 
so  far  as  they  could  be  effected  by  appropriate  legislation.^  At  no 
time  were  the  rebellious  States  out  of  the  pale  of  the  Union.  Their 
rights  under  the  Constitution  were  suspended,  but  not  destroyed. 
Their  constitutional  duties  and  obligations  were  unaffected,  and  re- 
mained the  same.  A  citizen  is  still  a  citizen,  though  guilty  of 
crime  and  visited  with  punishment.  His  political  rights  may  be 
put  in  abeyance  or  forfeited.  The  result  depends  upon  the  rule,  as 
defined  in  the  law,  of  the  sovereign  against  whom  he  has  offended. 
If  he  lase  his  rights,  he  escapes  none  of  his  disabilities  and  liabili- 
ties which  before  subsisted.  Certainly  he  can  have  no  new  rights 
or  immunities  arising  from  his  crime.  These  analogies  of  the 
county  and  the  citizen  are  not  inapplicable,  by  way  of  illustration, 
to  the  condition  of  the  rebel  States,  during  the  rebellion.  The  leg- 
islation of  Congress  shows  that  these  were  the  views  entertained  by 
that  department  of  the  government."     lb.  Gol. 

The  opinion  notices  the  Reconstruction  Acts  as  avoiding 
the  phraseology  employed  when  new  States  are  declared 
"  admitted  into  the  Union,"  but  reading,  in  distinction, 
the  said  State  "  shall  be  entitled  and  admitted  to  repre- 
sentation in  Congress,  as  a  State  in  the  Union,"  &c.,  and 
proceeds,  — 

"  The  different  language  employed  in  the  two  classes  of  cases 
evinces  clearly  that,  in  the  judgment  of  Congress,  the  reconstructed 
States  had  not  been  out  of  the  Union,  and  that  to  bring  them  back 
into  full  communion  with  the  loyal  States,  nothing  was  necessary 
but  to  permit  them  to  restore  their  representation  in  Congress. 
Without  reference  to  this  element  of  the  case,  we  should  have  come, 
to  the  same  conclusion.  But  the  fact  is  one  of  great  weight  in  the 
consideration  of  the  subject,  and  we  think  it  conclusive  upon  the 

1  The  foot-note  for  this  paragraph  is  Stewart  v.  Kahn,  11  Wall.  506,  in 
which  case  tlie  opinion  was  delivered  by  Mr.  Justice  Swayne.  But  the 
propositions  on  the  page  cited  are  hardly  equal,  in  political  significance,  to 
the  rather  remarkable  statement  for  which  it  is  here  referred  to. 


22  EXISTENCE   OF   THE    STATES    IN   UNION. 

Keith  V.  Clarli.     Opinion  of  tlie  Court. 

judicial  department  of  the  government."     lb.  citing  Luther  v.  Bor- 
den, 7  How.  57.^ 

A  disagreement  as  to  the  presumj)tion  in  favor  of  the 
validity  of  the  acts  of  the  governments  of  the  States  com- 
promised by  the  rebellion,  appears  in  the  case  of  Keith  v. 
Clark,  7  Otto,  454,  decided  October  Term,  1878. 

In  the  opinions  delivered  for  the  majority  and  in  those 
of  the  three  dissenting  Justices,  the  position  of  the  State 
governments  from  the  commencement  of  the  rebellion, 
onwards,  is  examined  at  greater  length,  and  with  exhibi- 
tion of  greater  variety  of  political  doctrine,  than  in  any 
former  case.  This  may  justify  a  somewhat  extended  cita- 
tion from  each  opinion. 

In  this  case  the  plaintiff  had  sued  the  defendant  in  the 
State  courts  for  the  sum  of  $40,  which  he  had  paid,  nnder 
protest,  to  the  defendant,  a  collector  of  taxes  for  the  State 
of  Tennessee,  after  he  had  tendered,  in  payment  for  that 
amount  of  tax  due,  the  same  sum  in  the  circulating  notes 
of  the  State  Bank  of  Tennessee,  which  had  been  issued 
after  May  6,  1861. 

Mr.  Justice  Miller,  delivering  the  opinion  of  the  court,^ 
proceeds  to  consider  the  question  of  the  effect  of  the  civil 
war  on  the  contract,  as  to  notes  issued  subsequently  to 
May  6,  1861. 

"  We  are  invited  now  to  examine  that  point  and  to  hold  that  as  to 

all  such  notes  the  12th  section  creates  no  valid  contract."    lb.  457. 

"  In  entering  upon  this  inquiry,  we  start  with  the  proposition,  that 

unless  there  is  something  in  the  relations  of  the  State  of  Tennessee 

^nd  the  bank,  after  the  date  mentioned,  to  the  government  of  the 

1  Mr.  Chief  Justice  Chase  dissented  from  the  decision  of  the  majority, 
giving  tlic  ground  of  liis  opinion  in  Osborn  v.  Nicliolson,  lb.  G55,  6V>:],  tliat 
contracts  for  sale  of  slaves  were  contrary  to  public  policy.  He  did  not 
allude  to  the  political  question. 

2  The  opinion  of  the  court  has  been  given  in  the  Reporter,  vol.  vii. 
Weekly  No.  Jan.  2y,  1879. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  23 

Miller,  J.,  delivers  Opinion  of  the  Court. 

United  States,  or  something  in  the  circumstances  under  which  the 
notes  now  sued  on  were  issued,  that  will  repel  the  presumption  of  a 
contract  under  the  12th  section,  or  will  take  the  contract  out  of  the 
operation  of  the  protecting  clause  of  the  Federal  Constitution  ;  this 
court  has  established  already  that  there  was  a  valid  contract  to  re- 
ceive them  for  taxes,  and  that  the  law  which  forbade  this  to  be  done 
is  unconstitutional  and  void. 

"  Those  who  assert  the  excei^tion  of  these  notes  from  the  general 
proposition  are  not  very  well  agreed  as  to  the  reasons  on  which  it 
shall  rest,  and  we  must  confess  that,  as  they  are  presented  to  us, 
they  are  somewhat  vague  and  shadowy.  They  may  all,  however, 
as  far  as  we  understand  them,  be  classed  under  three  principal 
heads. 

"  1.  The  first  is  to  us  an  entirely  new  proposition,  urged  with 
much  earnestness  by  the  counsel  who  argued  the  case  orally  for  the 
defendant. 

"It  is,  in  substance,  that  what  was  called  the  State  of  Tennessee 
prior  to  the  Gth  May,  1861,  became,  by  the  ordinance  of  secession 
passed  on  that  day,  subdivided  into  two  distinct  political  entities, 
each  of  which  was  a  State  of  Tennessee.  One  of  them  was  loyal 
to  the  Federal  government,  the  other  was  engaged  in  rebellion 
against  it.  One  State  was  composed  of  the  minority  who  did  not 
favor  secession,  the  other  of  the  majority  who  did.  That  these  two 
States  of  Tennessee  engaged  in  a  public  war  against  each  other,  to 
which  all  the  legal  relations,  rights,  and  obligations  of  a  jiublic  war 
attached.  That  the  government  of  the  United  States  was  the  ally 
of  the  loyal  State  of  Tennessee  and  the  confederated  rebel  States 
were  the  allies  of  the  disloyal  State  of  Tennessee.  That  the  loyal 
State  of  Tennessee,  with  the  aid  of  her  ally,  conquered  and  sub- 
jugated the  disloyal  State  of  Tennessee,  and  by  right  of  conquest 
imposed  upon  the  latter  such  measure  of  punishment  and  such  sys- 
tem of  law  as  it  chose,  and  that  by  the  law  of  conquest  it  had  the 
right  to  do  this.  That  one  of  the  laws  so  imposed  by  the  conquer- 
ing State  of  Tennessee  on  the  conquered  State  of  Tennessee  was 
this  one,  declaring  that  the  issues  of  the  bank  during  the  temporary 
control  of  affairs  by  the  rebellious  State  was  to  be  held  void;  and 
that,  as  conqueror  and  by  right  of  conquest,  the  loyal  State  had 
power  to  enact  this  as  a  valid  law. 

"  It  is  a  sufficient  answer  to  this  fanciful  theory,  that  the  division 


24  EXISTENCE   OF   THE  STATES   IN   UNION. 

Opinion  of  the  Court.     Keith  v.  Clark. 

of  the  State  into  two  States  never  had  any  actual  existence ;  that, 
as  we  shall  show  hereafter,  there  has  never  been  but  one  political 
society  in  existence  as  an  organized  State  of  Tennessee,  from  the  day 
of  its  admission  to  the  Union  in  1796  to  the  present  time.  That  it 
is  a  mere  chimera  to  assert  that  one  State  of  Tennessee  conquered 
by  force  of  arms  another  State  of  Tennessee,  and  imposed  laws 
upon  it;  and  finally,  that  the  logical  legerdemain  by  which  the 
State  goes  into  rebellion,  and  makes,  while  thus  situated,  contracts 
for  the  support  of  the  government  in  its  ordinary  and  usual  func- 
tions, which  are  necessary  to  the  existence  of  social  Hfe,  and  then, 
by  reason  of  being  conquered,  repudiates  these  contracts,  is  as  hard 
to  understand  as  similar  physical  performances  on  the  stage." 

Mr.  Justice  Miller,  next  considers  the  second  proposition, 
which  had  been  advanced,  and  which  he  thus  sets  forth,  — 

"  2,  The  second  proposition  is  a  modification  of  this,  and  deserves 
more  serious  attention.  It  is,  as  we  understand  it,  that  each  of  the 
eleven  States  who  passed  ordinances  of  secession  and  joined  the  so- 
called  Confederate  States  so  far  succeeded  in  their  attemj^tt  to  sepa- 
rate themselves  from  the  federal  government  that,  during  the  period 
in  which  the  rebellion  maintained  its  organization,  those  States  were 
in  fact  no  longer  a  part  of  the  Union,  or,  if  so,  the  individual  States, 
by  reason  of  their  rebellious  attitude,  were  mere  usurping  powers, 
all  of  whose  acts  of  legislation  or  administration  are  void,  except  as 
they  are  ratified  by  positive  laws  enacted  since  the  restoration,  or 
are  recognized  as  valid  on  the  principles  of  comity  or  sufferance. 

"  We  cannot  agree  to  this  doctrine.  It  is  opposed  by  the  inher- 
ent powers  which  attach  to  every  organized  political  society  pos- 
sessed of  the  right  of  self-government ;  it  is  opposed  to  the  recognized 
principles  of  public  international  law ;  and  it  is  opposed  to  the  well- 
considered  decisions  of  this  court.  '  Nations  or  States,'  says  Vattel, 
'  are  bodies  politic,'  &c." 

The  opinion  proceeds,  ib.  459,  460,  at  some  length,  mak- 
ing quotations  from  Vattel,  Cicero,  Wheaton,  as  to  the 
existence  of  nations,  or  states  in  the  same  sense,  and  re- 
ferring to  England  and  France  during  periods  of  revolu- 
tionary change  of  dynasty,  as  aifording  some  parallel  for 
the  case  before  the  court ;  saying,  in  continuation,  — 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  25 

Miller,  J.     Opinion  of  the  Court. 

"The  political  society  which  in  1796  became  a  State  of  the 
Uniou,  by  the  name  of  the  State  of  Tennessee,  is  the  same  which 
is  now  represented  as  one  of  those  States  in  the  Congress  of  the 
United  States.  Not  only  is  it  the  same  body  politic  now ;  but  it 
has  always  been  the  same.  There  has  been  perpetual  succession 
and  perpetual  identity.  There  has  from  that  time  always  been  a 
State  of  Tennessee,  and  the  same  State  of  Tennessee.  Its  execu- 
tive, its  legislative,  its  judicial  departments  have  continued  without 
interruption  and  in  regular  order.  It  has  changed,  modified,  and 
reconstructed  its  organic  law,  or  State  constitution,  more  than  once. 
It  has  done  this,  before  the  rebellion,  during  the  rebellion,  and 
since  the  rebellion.  And  it  was  always  done  by  the  collective  au- 
thority and  in  tlie  name  of  the  same  body  of  people  constituting 
the  political  society  known  as  the  State  of  Tennessee. 

''  This  political  body  has  not  only  been  all  this  time  a  State,  and 
the  same  State,  but  it  has  always  been  one  of  the  United  States  — 
a  State  of  the  Union.  Under  the  Constitution  of  the  United  States, 
by  virtue  of  which  Tennessee  was  born  into  the  family  of  States, 
she  had  no  lawful  power  to  depart  from  that  Union.  The  effort 
which  she  made  to  do  so,  if  it  had  been  successful,  would  have  been 
so  in  spite  of  the  Constitution,  by  reason  of  that  force  which  in 
many  other  instances  establishes  for  itself  a  status,  which  must  be 
recognized  as  a  fact,  without  reference  to  any  question  of  right,  and 
which  in  this  case  would  have  been,  to  the  extent  of  its  success,  a 
destruction  of  that  Constitution.  Failing  to  do  this,  the  State  re- 
mained a  State  of  the  Union.  She  never  escaped  the  obligations 
of  that  Constitution,  though  for  a  while  she  may  have  evaded  their 
enforcement." 

The  opinion  here  cites  the  decision  in  Texas  v.  White, 
and  an  extract  from  Chief  Justice  Chase's  opinion,  herein 
ah'eady  given,  ante,  p.  12,  and  from  the  Language  used  by 
Mr.  Justice  Swayne,  in  White  v.  Hart,  ante  p.  21,  with  his 
argument  from  the  Reconstruction  acts,  adding,  — 

"  These  cases,  and  especially  that  of  Texas  v.  White,  have  been 
repeatedly  cited  in  this  court  with  approval,  and  the  doctrine  they 
assert,^  must  be  considered  as  established,  in  this  forum  at  least." 
lb.  4G2. 

^  As  I  have  read  those  opinions  they  agree  only  in  using  the  same  verbal 
formula,  —  that  the  eleven  States  have  always  been  States  of  the  Union 


26  EXISTENCE   OF   THE   STATES  IN   UNION. 

Keith  V.  Clark.    Opinion  of  the  Court. 

As  to  reasons  coming  under  the  third  head  for  excluding 
these  notes  from  the  "  general  jDroposition,"  Mr.  Justice 
Miller,  in  the  opinion,  says,  lb.  463,  — 

"  3.  The  third  proposition  ou  which  the  judgment  of  the  courts 
of  Tennessee  is  supported  is,  that  the  notes  on  which  the  action  is 
brought  were  issued  in  aid  of  the  rebellion,  to  support  the  insurrec- 
tion against  the  lawful  authority  of  the  United  States,  and  are  there- 
fore void  for  all  purposes. 

"  The  principle  stated  in  this  jiroposition,  if  the  facts  of  the  case 
come  within  it,  is  one  which  has  repeatedly  been  discussed  by  this 
court.  The  decisions  establish  the  doctrine  that  no  promise  or 
contract,  the  consideration  of  which  was  something  done  or  to  be 
done  by  the  promisee,  the  purpose  of  which  was  to  aid  the  war  of 
the  rebellion,  or  give  aid  and  comfort  to  the  enemies  of  the  United 
States  in  the  prosecution  of  that  war,  is  a  valid  promise  or  contract, 
by  reason  of  the  turpitude  of  the  consideration."  ^     lb.  464. 

The  doctrine  of  the  court  on  this  point  is  only  such  as 
must  of  necessity  be  maintained  by  the  judiciary  under 
any  view  of  the  nature  of  the  Union  which  excludes  the 
right  of  State  secession  and  justifies  the  action  of  the  gov- 
ernment in  resisting  the  effort  to  maintain  it.  As  to  this, 
there  could  be  no  disagreement  in  the  court.  In  the  con- 
clusion of  the  opinion,  it  is  stated,  — 

"  There  is,  however,  nothing  in  the  case  before  us  to  warrant  the 
conclusion  that  these  notes  were  issued  for  the  purpose  of  aiding 
the  rebellion,  or  in  violation  of  the  laws  or  the  Constitution  of  the 
United  States.  There  is  no  plea  of  that  kind  in  the  record.  !No 
such  question  was  submitted  to  the  jury  Avhich  tried  the  case.  .  .  . 
We  cannot  infer,  then,  that  these  notes  were  issued  in  violation  of 

But  which  doctrine  does  Mr.  Justice  Miller  take  as  established?  that  of 
Chief  Justice  Chase  —  that  they  continued  States,  as  any  certain  territory 
and  inhabitants  constitute  a  State  of  the  United  States'?  or  that  of  Mr.  Jus- 
tice Swayne,  — that  they  continued  States,  as  political  personalities  subject 
to  a  sovereign  general  government  1 

1  The  cases  cited  are  Texas  v.  White,  7  Wall.  700,  733 ;  Ilanauer  v. 
Doane,  12  Wall.  .345 ;  Horn  v.  Lockhart,  17  Wall.  570 ;  Sprott  v.  United 
States,  20  Wall.  459 ;  Williams  v.  Bruffy,  6  Otto,  176. 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  27 

Keith  r.  Clark.     Waite,  Ch.  J.,  dissenting. 

any  federal  authority.  On  the  other  hand,  if  the  fact  be  so,  nothing 
can  be  easier  than  to  plead  it  and  prove  it.  .  .  .  To  undertake  to 
assume  the  facts  which  are  necessary  to  their  invalidity  on  this  record 
is  to  give  to  conjecture  the  place  of  proof,  and  to  rest  a  judgment  of 
the  utmost  importance  on  the  existence  of  facts  not  found  in  the 
record,  nor  proved  by  any  evidence  of  which  this  court  can  take 
judicial  notice."     lb.  466. 

The  decision  of  the  majority  was,  to  reverse  the  deci- 
sions of  the  courts  below,  on  the  ground  that  the  original 
contract  of  the  State  with  the  bill-holders  was  protected 
by  the  clause  in  the  Constitution  against  impairing  con- 
tracts by  State  laws.     lb.  466. 

From  this  judgment  Waite,  Chief  Justice,  and  Bradley 
and  Harlan,  Justices,  dissented,  each  delivering  an  opinion. 

The  reasons  given  by  the  Chief  Justice  for  his  dissent, 
lb.  467,  are  founded  on  reasons  of  the  third  class,  as  dis- 
criminated in  the  opinion  of  the  court,  without  any  consid- 
eration of  the  position  of  the  State  government  in  respect 
to  the  people  of  the  State,  or  the  position  of  the  State  as  a 
member  of  the  Union.  The  Chief  Justice  argued  that, 
from  the  State's  constitutional  amendment  of  June  26, 
1865,  declaring  null  and  void  all  issues  by  the  Bank,  after 
May  6,  1861,  and  from  the  judgment  rendered  by  the 
highest  court  of  the  State  against  the  validity  of  the  tender 
in  this  case,  the  presumption  is,  that  the  notes  were  issued 
in  aid  of  the  rebellion,  and  the  plaintiff  was  then  required 
to  overcome  ^  prima  facie  case  against  him. 

Mr.  Justice  Harlan  bases  his  dissent  more  on  political 
considerations,  harmonizing  with  the  arguments  referred  to 
in  the  opinion  of  the  court  under  the  first  head,  as  to  the 
general  invalidity  of  the  acts  of  those  who  exercised  the 
powers  of  government  in  Tennessee  during  the  war. 
lb.  479. 

"  It  was  because  the  State,  through  directors  of  its  own  appoint- 
ment, had  the  absolute  control  of  the  operations  of  the  bank,  owning 


28  EXISTENCE   OF   THE   STATES   IN   UNION. 

Keith  V.  Clark.    Opinion  of  Harlan,  J.,  dissenting. 

its  capital  aud  enjoying  its  profits,  that  it  made  the  agreement  con- 
tained in  the  12tli  section  of  the  charter.  .  .  .  But  it  is  to  be  ob- 
served that  the  State  which  made  this  contract  with  note-holders 
was  the  State  which  was  represented  by  the  lawful  government 
thereof.  ...  It  was  not  an  agreement  to  receive  notes  issued  under 
the  orders  of  usurping  directors,  or  by  directors  appointed  by,  or 
exercising  their  functions  under,  any  revolutionary  government, 
which,  by  violence,  should  displace  the  lawful  government  of  the 
State.  Upon  the  temporary  overthrow  of  the  latter  government, 
on  the  6th  of  May,  1861,  all  the  State  institutions,  including  the 
Bank  of  Tennessee,  were  seized  by  the  usurping  government.  .  .  . 
And  this  view  does  no  injustice  to  citizens  of  Tennessee  who  re- 
ceived the  notes  of  the  bank  in  the  ordinary  course  of  business. 
The}'  were  aware  of  the  fact  that  these  notes  were  issued  under  rev- 
olutionary authority.  They  did  not  take  them  upon  the  credit  of 
the  lawful  government,  or  upon  any  faith  they  had  in  its  restora- 
tion. They  took  them  upon  the  credit  of  the  usurping  State  gov- 
ernment, under  whose  authority  aud  for  whose  benefit  they  were 
issued,  and  which  government,  at  that  time,  was  regarded  by  the 
mass  of  the  people  of  Tennessee,  as  established  upon  a  permanent 
and  enduring  foundation,"  .  .  . 

Mr.  Justice  Harlan  further  holds,  lb.  481,  that  — 

.  .  .  "  it  is  immaterial  whether  the  notes  were  or  were  not  issued 
in  direct  aid  of  the  rebellion.  They  were  the  obligations  of  an  insti- 
tution controlled  and  managed  by  a  revolutionary  usurping  govern- 
ment, in  its  name,  for  its  benefit,  and  to  prevent  the  restoration  of 
the  lawful  State  government.  It  was  that  revolutionary  govern- 
ment which  undertook  to  withdraw  the  State  of  Tennessee  from  its 
allegiance  to  the  Federal  government,  and  make  it  one  of  the  Con- 
federate States.  When,  therefore,  the  people  of  Tennessee,  who 
recognized  the  autliority  of  the  United  States,  assembled  by  their 
delegates  in  convention  in  January,  1865,"  &c. 

After  allowing  that  some  acts  of  the  usurping  govern- 
ment may  be  held  valid,  Mr.  Justice  Harlan  says, 
lb.  483,  — 

"  Tennessee,  as  one  of  the  United  States,  cannot  be  under  a  con- 
stitutional duty  to  recognize  the  governmental  obligations  of  those 


THEORY   OF   OUR    NATIONAL  EXISTENCE.  29 

Keith  V.  Clark.     Opinion  of  Bradley,  J.,  dissenting. 

who,  by  revolution,  and  in  violation  of  the  Federal  Constitution, 
overthrew  the  legitimate  State  government,  not  because  of  its  ad- 
ministration of  the  internal  affairs  of  that  State,  but  solely  because 
of  its  adherence  to  the  Federal  Union,  and  its  refusal  to  acknowl- 
edge the  authority  of  the  Confederate  government,"  &c. 

According  to  the  view  taken  by  Mr.  Justice  Harlan,  it 
was  the  State  of  Tennessee,  as  a  member  of  the  Union, 
which  had  suffered  usurpation  of  its  government  by  some 
persons  not  identical  with  the  people  of  the  State. 

In  the  opinion  delivered  by  Mr.  Justice  Bradle}^  the 
State  governments  of  the  war  period  are  also  designated 
"  usurping  governments."  But  a  somewhat  different  view 
seems  to  have  been  taken,  either  of  the  person  usurping, 
or  of  the  nature  and  proper  place  of  the  power  usurped. 
The  opinion  is  stated  at  such  length,  that  only  the  most 
material  passages,  relative  to  this  view,  can  here  be 
given. 

Judge  Bradley  presents  the  question  as  follows,  lb. 
472,— 

"  In  fevor  of  the  proposition  that  the  lawful  State  government, 
reorganized  after  the  rebellion,  is  bound  to  recognize  the  bills  in 
question,  it  is  contended  that  the  State  of  Tennessee  has  always 
remained  the  same  State  ;  and  that,  unless  it  can  be  shown  affirma- 
tively that  its  acts  and  proceedings  were  intended  to  aid  the  prose- 
cution of  the  rebellion,  they  are  all  valid  and  binding  on  the 
reconstructed  State. 

"  The  latter  proposition  I  deny.  The  State  can  act  only  by  its 
constituted  authorities,  —  in  other  words,  by  its  government ;  and  if 
that  government  is  a  usurping  and  illegal  government,  the  State 
itself  and  the  legal  government  which  takes  the  place  of  the  usurp- 
ing government,  are  not  bound  by  its  acts,  ...  lb.  474. 

"  I  deny  the  assumption  that  the  governments  of  the  insurgent 
States  were  lawful  governments.  I  believe,  and  hold,  that  they 
were  usurping  governments.  I  understand  this  to  have  been  the 
opinion  of  the  court  in  Texas  v.  White,  7  Wall.  700.  The  very 
argument  in  that  case  is,  that  whilst  the  State,  as  a  community  of 
people,  remained  a  State  rightfully  belonging  to  the  United  States, 


30  EXISTENCE   OF  THE   STATES   IN   UNION. 

Keith  V.  Clark.     Opinion  of  Bradley,  J.,  dissenting. 

the  government  of  the  State  had  passed  into  relations  entirely  ab- 
normal to  the  conditions  of  its  constitutional  existence.  '  When 
the  war  closed,'  says  Mr.  Chief  Justice  Chase,  speaking  for  the 
court,^  '  there  was  no  government  in  the  State  except  that  which 
had  been  organized  for  the  purpose  of  waging  war  against  the 
United  States.  That  government  immediately  disappeared.  The 
chief  functionaries  left  the  State.  Many  of  the  subordinate  officers 
followed  their  example.  Legal  responsibilities  were  annulled  or 
greatly  impaired.'  Again  he  says,  '  There  being,  then,  no  govern- 
ment in  Texas  in  constitutional  relations  with  the  Union,  it  became 
the  duty  of  the  United  States  to  provide  for  the  restoration  of  such 
government.'  Again,  in  speaking  of  the  power  and  duty  of  Con- 
gress to  guarantee  to  each  State  a  republican  government,  and  the 
necessarj'  right  which  follows  therefrom,  to  decide  what  government 
is  established  in  each  State,  the  Chief  Justice  makes  the  following 
quotation  from  the  opinion  of  Mr.  Chief  Justice  Taney,  in  the  case 
of  Luther  v.  Borden,  7  How.  1.   .  .  . 

"  Mr.  Chief  Justice  Chase  proceeds  to  say, '  This  is  the  language  of 
the  late  Chief  Justice,  speaking  for  this  court,  in  a  case  from  Rhode 
Island,  arising  from  the  organization  of  opposing  governments  in 
that  State.  And  we  think  that  the  principle  sanctioned  by  it  may 
be  applied,  with  even  more  propriety,  in  the  case  of  a  State  de- 
prived of  all  rightful  government  by  revolutionary  violence,  though 
necessarily  limited  to  cases  where  the  rightful  government  is  thus 
subverted,  or  in  imminent  danger  of  being  overthrown  by  an  op- 
posing government,  set  up  by  force  within  the  State.' " 

From  the  citation  of  these  parts  of  Chief  Justice  Chase's 
opinion,  and  particularly  of  that  relying  on  the  Rhode*  Is- 
land case,  it  would  seem  that,  in  Mr.  Justice  Bradley's  con- 
ception of  the  usurpation,  it  was  usurpation  as  against  the 
State,  or  people  of  a  State,  —  a  loyal  State,  a  loyal  people  of 
a  State,  or  at  least  a  politically  not-guilty-of-any-thiiig-in- 
particular  State,  or  people  of  a  State. 

But,  from  the  passages  immediately  following  in  tlie  opin- 
ion, it  might  be  inferred  that  the  usurpation  had  rather  been 

1  The  passage  cited  is  7  Wall.  728.     See  caite,  p.  13,  note. 


THEORY    OF   OUR   NATIONAL   EXISTENCE.  31 

Keith  V.  Clark.    Bradley,  J.,  dissenting. 

against  the  government  of  the  United  States,  without  ref- 
erence to  State  organization,  and  that  the  powers  usurped 
were  those  ordinarily  exercised  by  the  general  government, 
in  and  for  the  United  States  generally,  — 

"  The  actual  course  of  things  taken  in  the  seceding  States,  so 
fully  detailed  by  the  Chief  Justice  in  Texas  v.  White,  are  demon- 
strative, it  seems  to  me,  of  the  position  which  I  have  assumed.  The 
several  State  governments  existing  or  newly  organized  at  the  times 
when  the  ordinances  of  secession  were  respectively  adopted,  as- 
sumed all  the  branches  of  sovereignty  belonging  to  the  Federal  gov- 
ernment. The  right  to  declare  war,  &c,  .  .  .  were  usurped  by  the 
said  State  governments,  either  singly,  or  in  concert  and  confederacy 
with  the  others.  They  assumed  to  sever  the  connection  between  their 
respective  communities  and  the  government  of  the  United  States, 
and  to  exercise  the  just  powers  belonguig  to  that  government. 
That  such  governments  should  be  denominated  legal  State  gov- 
ernments in  this  country  where  the  Constitution  of  the  United  States 
is  and  ought  to  be  the  supreme  law  of  the  land,  seems  to  be  most 
remarkable.  The  proposition  assumes  that  the  connection  between 
the  States  and  the  general  government  is  a  mere  bargain  or  con- 
tract, which,  if  broken,  —  though  unlawfully  broken,  —  still  leaves 
the  States  in  rightful  possession  of  all  their  pristine  autonomy  and 
authority  as  States. 

"  I  do  not  so  read  the  constitution  of  government  under  which  we 
live.  Our  government  is  a  mixed  government,  —  jmrtly  state,  partly 
national.  The  people  of  the  United  States,  as  one  great  political 
community,  have  willed  that  a  certain  portion  of  the  government 
.  .  .  should  be  deposited  in  and  exercised  by  a  national  government ; 
and  that  all  matters  of  merely  local  interest  should  be  deposited  in 
and  exercised  by  the  State  governments.  This  division  of  gov- 
ernmental powers  is  fundamental  and  organic.  It  is  not  merely  a 
bargain  between  States.  It  is  part  of  our  fundamental  political 
organization.  Any  State  attempting  to  violate  this  constitution  of 
things  not  only  breaks  the  fundamental  law,  but,  if  it  establishes  a 
government  in  conformity  with  its  views,  that  government  is  a  usurp- 
ing government, —  a  revolutionary  government,  —  as  much  so  as 
would  be  an  independent  government  set  up  by  any  particular 
county  in  a  State.  .  .  . 


82  EXISTENCE   OF  THE   STATES    IN    UNION. 

Keith  V.  Clark.     Bradley,  J.,  dissenting. 

"  I  do  not  mean  to  say  that  States  are  mere  counties  or  provinces.^ 
But  I  do  mean  to  say  that  the  political  relation  of  the  people  of  the 
several  States  to  the  Constitution  and  government  of  the  United 
States  is  such,  that  if  a  State  government  attempt  to  sever  that 
relation,  and  if  it  actually  sever  it  by  assuming  and  exercising  the 
functions  of  the  Federal  government,  it  becomes  a  usurping  gov- 
ernment. 

"  We  have  always  held,  it  is  true,  that,  in  the  interests  of  order 
and  for  the  promotion  of  justice,  the  courts  ought  to  regard  as 
valid  all  those  acts  of  the  State  governments  which  were  received 
and  observed  as  laws  for  the  government  of  the  people  in  their  re- 
lations with  each  other,  so  far  as  it  can  be  done  without  recognizing 
and  confirming  what  was  actually  done  in  aid  of  the  rebellion." 
lb.  476. 

But  Mr.  Justice  Bradley  does  not  explain  how  the  courts 
are  to  apply  this,  either  by  admitting  or  denying  a  presump- 
tion in  favor  or  against  the  acts  of  such  governments  in  cases 
before  them ;  and,  from  the  remainder  of  the  opinion,  it 
would  appear  that  he  considered  it  rather  a  political  ques- 
tion, and  that  all  claims  of  right  resting  on  the  action  of 
the  State  government  during  the  war  were  dependent  on 
some  ratification  by  the  new  "  lawful  State  governments." 

He  says,  lb.  478,  — 

"  It  is  undoubtedly  true  that,  when  revolutions  in  governments 
occur,  the  new  governments  do  often,  as  matter  of  policy,  and  to 
prevent  individual  distress  among  the  citizens,  assume  the  obliga- 
tions of  the  governments  to  which  they  succeed.  But  this  is  done 
from  motives  of  public  policy  only,  and  is  not  submitted  to  as  a 
matter  of  absolute  right.  Such  was  clearly  the  relation  of  the 
lawful  State  governments  to  the  obligations  of  the  usurping  govern- 
ments at  the  close  of  the  civil  war  in  this  country.  They  could 
assume  them  or  not  as  they  saw  fit." 

In  this  connection,  he  refers  to  the  repudiation  of  these 
claims  in  the  State  Constitution  of  1865. 

*  This  portion  of  Mr.  Justice  Bradley's  opinion  savors  more  of  Mr.  Jus- 
tice Swayne  than  of  Mr.  Chief  Justice  Chase.     Compare,  ante,  p.  21. 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  33 

Keith  V.  Clark.     Bradley,  J.,  dissenting. 

But  it  is  not  necessary  to  cite  from  this  jDortion  of  the 
opinion,  as  I  have  not  proposed  to  consider  any  particular 
application  of  the  legal  principle,  further  than  may  be  a 
means  of  deriving  some  political  doctrine  of  the  position 
of  the  States.  In  which  respect,  however,  the  following 
passages,  in  conclusion,  are  important :  — 

"  Whether  the  community  of  people  constituting  the  several 
States  remained  States  during  the  insurrection  is  of  no  consequence 
to  the  argument.  The  question  is,  whether  the  State  governments 
were  or  were  not  legal  governments,  and  whether  the  obligations 
by  them  assumed  are  binding  upon  the  lawful  government  of  the 
State. 

"That  the  acts  of  secession  were  void,  of  course  no  one  denies. 
The  civil  war  was  carried  on  by  the  United  States  to  demonstrate 
their  nullity.  But  neither  has  that  any  thing  to  do  with  the  ques- 
tion as  to  the  validity  of  the  State  governments  which  waged  war 
against  the  United  States ;  except  to  make  it  more  certain  and  in- 
dubitable that  they  were  usurping  governments."     lb.  478. 

Mr.  Justice  Bradley  adds  in  concluding  his  opinion,  — 

"  It  seems  to  me,  that  the  attempt  to  fasten  upon  the  lawful  gov- 
ernment of  Tennessee,  an  obligation  to  receive,  as  cash,  bills  that 
were  issued  under  the  authority  of  the  usurping  government  of  that 
State,  whilst  it  was  engaged  in  a  deadly  war  against  the  govern- 
ment of  the  United  States,  is  calculated  to  introduce  evils  of  great 
magnitude ;  that  it  will  ultimately  lead  to  the  recognition  of  the 
war  debts  of  the  seceding  States,  notwithstanding  the  prohibition 
of  the  XlVth  amendment  of  the  Constitution.  But  this  I  would 
regard  as  a  far  less  evil  than  the  establishment  of  doctrines  at  war, 
as  I  think,  with  the  true  principles  of  our  national  government,  as 
well  as  with  the  established  rules  of  public  law." 

As  it  was  assumed  in  beginning  this  inquiry  that,  to  as- 
certain what  political  authority  had  been  maintained  by 
the  victorious  belligerent,  it  was  necessary  to  look  at  the 
action  of  the  government  representing  that  belligerent,  in 
the  exercise  of  its  several  functions,  the  only  judicial  opin- 
ions which  it  is  important  to  consider  are  those  of  the 


34  EXISTENCE  OF  THE   STATES  IN  UNION. 

State  Courts  on  the  Lawfulness  of  their  Governments. 

national  judiciar}^.  It  would  only  be  matter  of  curiosity, 
then,  in  strict  consistency,  to  learn  the  opinions  held  by  the 
present  courts  of  the  eleven  States  of  the  Confederacy, 
as  to  the  lawfulness  of  the  governments  of  their  respective 
States  during  the  period  which  was  referred  to  by  the 
Supreme  Court  in  the  cases  which  have  been  cited. ^ 

Although  it  is  here  assumed  that  the  determination  of 
political  doctriue  is  not  withii*  the  sphere  of  the  judicial 
function,  the  citations  from  opinions  given  by  different 
judges  are  not  presented  merely  as  views  of  private  indi- 
viduals. Having  been  expressed  in  cases  actually  enforc- 
ing rights  and  obligations  of  private  persons,  those  views 
are  on  public  record,  as  having  been,  in  a  certain  degree, 
the  basis  of  the  government's  action,  in  administering  the 
law.  They  have,  to  a  certain  extent,  become  part  of  a 
13olitical  fact.  Under  the  same  view  of  the  conditions  of 
political  truth,  the  language  of  Presidents  and  of  Congress 
will  not  here  be  cited  as  expression  of  authority  in  doc- 
trine ;  but  so  far  only  as  it  may  be  regarded  as  having 
been,  in  specific  instances,  a  basis  for  either  executive  or 
legislative  action,  and  so  have  become,  more  or  less,  mat- 
ter of  political  fact. 

For  this  reason  I  do  not  attempt,  b}^  any  citation,  from 
their  respective  messages,  proclamations,  or  other  official 
statements,  to  present  either  President  Lincoln's  or  Presi- 
dent Johnson's  general  view  of  the  nature  and  relation  of 
the  States  in  the  Union. 

So  far  as  Mr.  Lincoln's  methods  of  State  restoration  ^ 
were  sanctioned  by  Congress,  they  were  so  as  being  neces- 

1  From  cases  in  tlie  State  courts  cited  in  United  States  Digest,  xii.  G92 
(Confederate  States),  it  would  appear  that  they  have  almost  constantly 
affirmed  their  State  governments  to  have  been  lawful  governments  during 
the  war  and  to  have  had  no  idea  of  a  usurpation. 

2  A  summary  view  of  Mr.  Lincoln's  general  idea  on  this  matter  is  given 
in  II.  J.  Raymond's  Life,  &c.  of  Lincoln,  12mo,  451,  and  in  Cliapter  XIII., 
of  the  8vo  edition. 


I 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  35 

Mr.  Lincoln's  Plan  of  State  Restoration. 

sitated,  for  a  certain  limited  period,  by  the  conditions  of  a 
state  of  war.  A  difference  of  action  on  this  subject  could 
hardly  arise  among  those  who  all  equally  assumed  the 
right  and  duty  of  the  general  government  to  resist  seces- 
sion as  rebellion,^  until  the  conditions  of  belligerency  had 
ceased  to  com])licate  the  question.  This  cannot  be  said  to 
have  been  the  state  of  things  until  after  Mr.  Lincoln's 
death. 

Even  if  it  could  be  shown  that  the  view  finally  acted 
upon  in  the  Reconstruction  legislation  of  1867  was  irre- 
concilable with  ]\Ir.  Lincoln's  own  plan  of  "  restoration," 
the  course  taken  by  Congress  in  that  matter  was  begun  in 
his  lifetime ;  apparently  on  the  initiative  given  by  his 
message  to  Congress  with  the  proclamation  of  amnesty, 
both  dated  Dec.  8,  1863.     The  proclamation  recites, — 

"  Whereas,  in  and  by  the  Constitution  of  the  United  States,  it  is 
provided  that  the  President  '  shall  have  power  to  grant  reprieves 
and  pardons  for  offences  against  the  United  States,  except  in  cases 
of  impeachment ; '  and  whereas  a  rebellion  now  exists  whereby  the 
loyal  State  governments  of  several  States  have  for  a  long  time 
been  subverted,  and  many  persons  have  committed,  and  are  now 
guilty  of  treason  against  the  United  States,"  &c. 

After  stating  the  conditions  of  the  proffered  amnesty, 
the  President  makes  known  that,  — 

"  Whenever  ...  a  number  of  persons  .  .  .  not  less  than  .  .  . 
shall  re-establish  a  State  government  which  shall  be  republican, 
.  .  .  such  government  of  the  State,  and  the  State,  shall  receive 
thereunder  the  benefit  of  the  constitutional  guaranty  which  de- 
clares," &c.     13  U.  S.  Stat.  738,  App. 

1  It  should  be  remembered  that  ap:reenient  in  this  course  of  action  by  no 
means  involved  harmony  in  political  theorij,  and  that  the  right  and  duty  were 
strenuously  contested,  in  the  bcginninjj,  by  many  who  were  not  citizens  of 
the  Confederate  States.  On  each  of  these  points  compare  ^lacpherson's 
Hist.  pp.  48-00,  under  "  The  proceedings  of  the  government  in  relation  to 
the  secession  movement."    Period,  December  1860  to  May  18G1. 


86  EXISTENCE   OF  THE   STATES  IN  UNION. 

Mr.  Lincoln's  Plan  of  State  Restoration. 

In  the  jNIessage  of  the  same  date,  when  referring  to  the 
offer  made  in  the  proclamation,  the  President,  speaking  of 
the  constitutional  guaranty,  says  :  —   . 

"  But  why  tender  the  benefits  of  this  provision  only  to  a  State 
government  in  this  particular  way  ?  ^  This  section  of  the  Consti- 
tution contemplates  a  case  wherein  the  element  within  a  State, 
favorable  to  a  republican  government  in  the  Union,  may  be  too 
feeble  for  an  opposite  and  hostile  element,  external,  or  even  within 
the  State,  and  such  are  precisely  the  cases  with  which  we  are  now 
dealing."  ^     Macpherson  Pol.  Hist.  146. 

Further  on  in  the  Message,  the  President  says  :  — 

"The  suggestion  in  the  proclamation,  as  to  maintaining  the 
political  frame-work  of  the  States  on  what  is  called  reconstruc- 
tion, is  made  in  the  hope  that  it  may  do  good  without  danger  of 
harm." 

The  Message  did  not  invite  the  action  of  Congress ; 
but,  in  the  conclusion  of  the  Proclamation,  the  President 
said,  — 

"  While  the  mode  presented  is  the  best  the  Executive  can  sug- 
gest, with  his  present  impressions,  it  must  not  be  understood  that 
no  other  possible  mode  would  be  acceptable."  Macpherson  Pol. 
Hist.  147,  148. 

Whatever  may  have  been  Mr.  Lincoln's  theory  of  the 
origin  of  the  Constitution,  it  is  clear  that  he  always  as- 
sumed the  continued  existence  of  the  eleven  States  of  the 
Confederacy,  as  political  bodies  remaining  still  in  being, 
either  in  or  out  of  the  Union ;  though,  in  either  case, 
being  for  the  time  "  out  of  their  practical  relations,"  to 

1  It  is  not  clear  wliat  "  particular  way  "  Mr.  Lincoln  referred  to. 

2  If  the  theory  of  a  usurping  government,  supported  by  overwlielming 
numbers  against  some  unknown  handful  of  loyal  people,  standing  for  the 
State,  is  to  be  hold  statesmanlike,  and  to  be  accepted  in  our  public  law,  Mr. 
Lincoln  ought,  in  simple  justice,  have  his  share,  as  one  at  least  among  the 
patentees  ;  if,  indeed,  the  whole  credit  does  not  belong  to  him,  as  the  original 
discoverer. 


THEORY  OP   OUR  NATIONAL  EXISTENCE.  37 

A  bill  passed,  —  not  signed  by  tlie  President. 

use  his  own  phrase,  to  the  United  States,  or  to  the  nation, 
or  to  the  government,  or  to  the  other  States.^ 

Although  the  President  had  not  directly  invited  the 
action  of  Congress,  the  House  of  Representatives  on  the 
motion  of  Mr.  H.  Winter  Davis,  Dec.  15,  1863  (House 
Journal,  1st  Sess.  38th  Cong.  p.  57),  referred  to  a  select 
committee  "  so  much  of  the  Message  as  relates  to  the  duty 
of  the  United  States  to  guarantee  a  republican  form  of 
government  to  the  States  in  which  the  governments  recog- 
nized by  the  United  States  have  been  abrogated  or  over- 
thrown," with  instructions  "  to  report  the  bills  necessary 
and  proper  for  carrying  into  execution  the  foregoing  guar- 
anty "  (vote  89  to  80).  The  bill  reported  Feb.  16,  1864, 
bill  No.  244  of  38th  Congress,  lb.  p.  624,  entitled  a  hill  to 
guarantee  to  certain  /States  tvhose  governments  have  been 
usurped  or  overthroiV7i,  a  republican  form  of  government, 
after  undergoing  amendments,^  finally  passed  the  Senate 
and  House  July  2,  1864,  but  was  not  signed  by  the  Presi- 
dent ;  the  Congress  adjourning  the  same  day,  sine  die.  A 
copy  of  the  bill  was  published,  as  appended  to  Mr.  Lin- 
coln's proclamation  of  July  8,  1864,  in  which  he  speaks  of 
it  as  containing  "  among  other  things  a  plan  for  restoring 
the  States  in  rebellion  to  their  proper  practical  relation  in 
the  Union,"  &c.  Macpherson  Hist.  318  ;  13  U.  S.  Stat. 
744. 

1  Some  further  remarks  on  Mr.  Lincoln's  views  on  this  matter  will  be 
found  further  on  in  Chapter  VII. 

2  The  bill  as  amended  before  the  final  vote  had  as  preamble,  — 

[a]  "  Whereas,  the  so-called  Confederate  States  are  a  public  enemy, 
waging  an  unjust  war,  whose  injustice  is  so  glaring  that  they  have  no  right 
to  claim  the  mitigation  of  the  extreme  rights  of  war  which  are  accorded  by 
modern  usage  to  an  enemy  who  has  a  right  to  consider  the  war  a  just  one  ; 
[b]  a?id  whereas,  none  of  the  States  which,  by  a  regularly  recorded  majority 
of  its  citizens,  have  joined  the  so-called  Southern  Confederacy,  can  be  con- 
sidered and  treated  as  entitled  to  be  represented  in  Congress,  or  to  take  any 
part  in  the  political  government  of  the  Union  :  Therefore  —  "  Tiiis  pream- 
ble was  rejected  by  the  House  of  Representatives ;  vote  75  to  57.  Mac- 
pherson Hist.  317 ;  House  Journal  1st  Sess.  38th  Congress,  624. 


88  EXISTENCE   OF  THE   STATES   IN  UNION. 

Plan  for  Reconstruction,  in  the  Bill. 

There  is  nothing  in  the  body  of  the  bill  (13  Stat.  U.  S. 
745,  App.)  to  explain  how  a  deficiency  of  republican  gov- 
ernment, calling  for  the  exercise  of  the  duty  of  guaranty, 
had  occurred  in  any  of  the  States  which,  in  the  first  sec- 
tion, are  designated  only  as  "  the  States  declared  in 
rebellion  against  the  United  States  ; "  no  States  being 
designated  by  name  anywhere  in  the  bill ;  and  there  is  no 
assertion  that  no  government  was  then  existing  in  those 
States,  such  as  is  made  in  the  Reconstruction  Acts  of 
1867. 

The  plan  of  the  bill  differed  from  that  of  Mr.  Lincoln  in 
directing  the  call  for  a  convention  in  the  several  States 
referred  to,  for  the  purpose  of  framing  a  new  constitution ; 
which  should  contain  certain  provisions,  respecting  eligibil- 
ity to  office,  involuntary  servitude,  and  payment  of  debt 
"  created  by  or  under  sanction  of  the  usurping  power  " 
(sec.  7).  It  also  provided  that  if  the  convention  first 
called  "  refuse  to  i*e-establish  the  State  government  on  the 
conditions  aforesaid,  the  provisional  governor  shall  declare 
it  dissolved,"  and  whenever  the  President  "  shall  have  rea- 
son to  believe  "  that  there  is  "  a  sufficient  number  of  the  peo- 
ple of  the  State  entitled  to  vote  under  this  act,"  ready  to 
re-establish  the  State  government  on  these  conditions,  he 
should  direct  the  said  governor  to  call  another  convention 
(sec.  9).  13  Stat.  U.  S.  745.  The  bill  gave  the  franchise 
to  all  resident  wliite  citizens  of  full  age  who  should  take 
the  oath  of  allegiance  prescribed  by  Act  of  Congress  of 
July  2,  1862  (sec.  4). 

For  the  reason  above  stated  it  is  immaterial  to  inquire 
into  the  views  of  the  nature  of  the  Union  held  by  Mr. 
Johnson  as  exhibited  by  his  public  course  in  reference  to 
State  Reconstruction.  His  political  doctrine  may  or  may 
not  have  been  irreconcilable,  either  with  tlie  action  of  his 
predecessor,  or  with  the  policy  which  prevailed  in  Congress, 
as  the  resulting  force  from  a  variety  of  conflicting  opinions. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  39 

Congressional  Reconstruction. 

It  is  enough  that  the  political  course  actually  followed  in 
the  Reconstruction  measures  was  supposed,  at  the  time, 
by  Mr.  Johnson,  and  by  all  parties,  to  be  contradictory 
to  those  political  principles  by  which  he,  as  President, 
directed  his  efforts.^ 

It  might,  perhaps,  have  been  reasonable  to  expect  that 
some  more  or  less  clear  explanation  of  the  political  status 
of  a  State,  as  affected  by  the  Rebellion,  would  have  been 
given  in  the  three  Acts  of  Congress  which  constitute  the 
so-called  Reconstruction  measures ;  or,  at  least,  in  some 
judicial  decisions  affirming  their  validity.  It  would  seem, 
however,  to  be  still  an  open  question  whether  these  meas- 
ures were  in  harmony  with  our  political  faiths  on  the 
theory,  that  the  States  in  their  several  corporate  capacities 
were  to  be  treated  as  political  persons  required  to  submit 
to  all  the  consequences  of  defeat  on  "  wager  of  battle," 
or  under  the  view  that,  as  States,  they  were  claimants  of 
the  Constitutional  guaranty  for  a  republican  government, 
of  which  they  had  been  deprived  by  forcible  usurpation  ; 
which  guaranty  was  ingeniously  realized  by  organizing, 
under  military  coercion,  an  electoral  machinery  driven  by 
the  votes  of  the  emancipated  slaves  ;  the  States  appearing 
in  the  attitude  of  political  repentance  by  exercise  of  inher- 
ent autonomy.  There  is  little  to  be  learned  in  regard  to 
the  theoretic  status  of  the  States  affected  by  them  from 

1  In  fact  there  was  very  little  difference  in  the  matter  of  theory  between 
these  bitter  opponents.  In  the  preamble  of  his  Proclamation  of  April  2, 
18G6,  Mr.  Johnson's  languaije  was  :  "  Whereas,  &c.  it  is  the  manifest  determi- 
nation of  the  American  people  that  no  State,  of  its  own  will,  lias  the  right  or 
power  to  go  out  of,  or  separate  from,  the  American  Union,  and  that,  there- 
fore, each  State  ought  to  remain,  and  constitute  an  integral  portion  of  the 
United  States  .  .  .  and  icliereus,  the  Constitution  of  the  United  States  pro- 
vides for  constituent  communities  only  as  States,  and  not  as  Territories, 
dependencies,  provinces,  and  protectorates."  14  U.  S.  Stat.  30th  Congress, 
App.  ii.  It  was  eighteen  months  after  this  tliat  Chief  Justice  Chase  said  :  — 
"  The  Constitution,  in  all  its  provisions,  looks  to  an  indestructible  Union 
composed  of  indestructible  States."  Ante,  p.  12.  In  the  Reconstruction 
legislation  the  States  are  carefully  designated  as  States. 


40  EXISTENCE   OF  THE   STATES   IN   UNION. 

The  Reconstruction  Legislation.  * 

language  of  the  three  Acts  of  Congress  which  constitute 
the  so-called  Reconstruction  legislation ;  all  passed  over 
President  Johnson's  objections.  But  in  politics,  if  any- 
where, "  action  speaks  louder  than  words." 

The  first  of  these  is  that  of  March  2,  1867,  entitled  An 
act  for  the  more  efficient  government  of  tlie  Rebel  States. 
14  U.  S.  Stat.  428;  of  which  Sec.  1  declares  "  whereas  no 
legal  State  government,  or  adequate  protection  for  life  and 
property,  now  exists  in  the  rebel  States  of  Virginia,  '&c., 
and  whereas,  it  is  necessary  that  peace  and  good  order 
should  be  enforced  in  said  States  until  loyal  and  republi- 
can State  governments  can  be  legally  established."  ^ 

Similar  expressions  occur  in  the  supplementary  Acts  of 
March  23,  and  July  19,  1867.     15  U.  S.  Stat.  2,  14. 

The  first  of  these  Acts  provided  that  the  said  "  rebel 
States  "  shall  be  divided  into  military  districts,  and  made 
subject  to  the  military  authority  of  the  United  States,  &c. 
(Sec.  1). 

The  Act  differs  from  the  bill  of  1864  {ante,  p.  37),  in 
not  directing  the  calling  of  a  convention  'by  the  provi- 
sional governor,  but  enacting  that,  — 

"  When  the  people  of  any  one  of  the  said  rebel  States  shall 
have  formed  a  constitution  of  government  in  conformity  with  the 
Constitution  of  the  United  States  in  all  respects,  framed  by  a  con- 
vention of  delegates  selected  by  the  male  citizens  of  said  State, 
twenty-one  years  old  and  upward,  of  whatever  race,  color,  or  pre- 
vious condition  .  .  .  and  when  such  constitution  shall  provide  that 
the  elective  franchise  shall  be  enjoyed  by  all  such  persons  as  have 
the  qualifications  herein  stated  for  electors  of  delegates,"  &c. 

And  tliat,  when  such  constitution  shall  have  been  ap- 
proved by  Congress,  and  when,  — 

1  Tills  Act  is  cited  by  Mr.  Justice  Grier  as  one  {around  for  holding,  in 
his  dissenting  opinion,  that  Texas  was  not  a  State  in  the  Union  at  the  time 
in  question.     See  ante,  p.  16,  Texas  v.  White. 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  41 

The  Reconstruction  Legislation. 

"  Said  State,  by  a  vote  of  its  legislature  elected  under  said  con- 
stitution shall  have  adopted  the  amendment  to  the  Constitution  of 
the  United  States,  proposed  by  the  39th  Congress,  and  known 
as  Article  fourteen,  and  when  said  Article  shall  have  become  a 
part  of  the  Constitution  of  the  United  States,  said  State  shall  be 
declared  entitled  to  representation  in  Congress,^  and  senators  and 
representatives  shall  be  admitted  therefrom,  on  their  taking  the 
oath  prescribed  by  law,  and  then  and  thereafter  the  preceding  sec- 
tions of  this  act  [relating  to  military  government]  shall  be  inopera- 
tive in  said  State."     Sec.  5. 

In  conclusion  it  is  enacted,  — 

"  That  until  the  people  of  said  rebel  States  shall  be  by  law 
admitted  to  representation  in  the  Congress  of  the  United  States, 
any  civil  governments  which  may  exist  therein  shall  be  deemed 
provisional  only,  and  in  all  respects  subject  to  the  paramount 
authority  of  the  United  States  at  any  time  to  abolish,  modify,  con- 
trol, or  supersede  the  same."     Sec.  6. 

The  two  supplementary  Acts  consist  almost  entirely  in 
the  detailed  provisions  for  conducting  the  elections  in 
view  of  calling  the  conventions.  In  the  first  section  of 
the  last  of  these  it  is  declared  to  have  been  — 

"  The  intent  of  the  two  preceding  Acts  that  the  governments 
then  existing  in  the  rebel  States  of  Virginia,  &c.  .  .  .  were  not  le- 
gal governments,  and  that,  thereafter,  said  governments,  if  con- 
tinued were  to  be  continued  subject  in  all  j-espects  to  the  military 
commander  of  the  respective  districts,  and  to  the  authority  of  Con- 
gress." 

With  these  Acts,  as  equally  important,  in  indicating  the 
political  status,  may  be  noticed  the  Resolution  passed, 
over  the   President's  objections,   July  20,  1868,  entitled 

1  In  this  clause  it  is  clearly  supposed  that  the  State  shall  be  in  existence 
when  this  is  declared.  White  v.  Hart,  onfe,  pp.  19,  21.  Mr.  Justice  Swayne 
cites  this  as  showing  that  "  the  political  department  of  the  government " 
had  regarded  the  State  as  having  existed  during  the  Rebellion.  But  why 
are  not  the  previous  provisions,  here  cited,  eqvuilly  important  in  that  respect? 
Do  thei/  equally  show  that  the  State  remained  a  State  ? 


42  EXISTENCE   OF   THE   STATES   IN   UNION. 

Report  of  the  Committee  on  Reconstruction. 

Resolution  excluding  from  the  Electoral  College  votes  of 
States  lately  in  Rebellion,  which  shall  not  have  heeyi  reorgan- 
ized. 15  U.  S.  Stat.  257.  It  reads,  however,  "  that  none 
of  the  States  whose  inhabitants  were  lately  in  rebellion," 

The  rej)ort  made  June  8,  1866,  by  the  majority  of  the 
joint  committee  on  Reconstruction,^  as  being  the  most 
authoritative  declaration  of  principles  supposed  to  have 
been  afterwards  carried  out  in  political  action,  is  a  docu- 
ment which,  either  for  good  or  evil,  will  probably  be  re- 
garded as  one  of  the  most  important  in  the  history  of  this 
country. 

For  this  reason  some  paragraphs,  bearing  most  directly 
on  the  position  and  relations  of  States  in  the  Union,  are 
here  cited. 

In  this  report  it  is  said  :  — 

[a]  "  A  claim  for  the  immediate  admission  of  senators  and  rep- 
resentatives from  the  so-called  Confederate  States  has  been  urged, 
which  seems  to  yonr  committee,  not  to  be  founded  either  in  reason 
or  in  law,  and  which  cannot  be  passed  without  comment.  Stated  in 
a  few  words,  it  amoitnts  to  this  :  That  inasmuch  as  the  lately  insur- 
gent States  had  no  legal  right  to  separate  themselves  from  the 
Union,  they  still  retain  their  positions  as  States,  and  consequently 
the  people  have  a  right  to  immediate  representation  in  Congress 
without  the  imposition  of  any  conditions  whatever"  .  .  .  &c. 

After  briefly  reciting  the  civil  and  military  transactions 

1  In  connection  with  all  the  Reconstruction  legislation  of  Congress,  may 
be  remembered  also  the  resolutions  of  the  House  of  Representatives  of  July 
22,  1861,  denying  "any  purpose  of  conquest  or  subjugation,"  and  afiirming 
that  the  war  was  waged  "to  preserve  the  Union  with  all  the  dignity,  equal- 
ity, and  rights  of  the  several  States  unimpaired,  and  that  as  soon  as  these 
objects  are  accomplished  the  war  ought  to  cease."  House  Journal,  1st  Sess. 
37tli  Congress,  p.  124,  and  citation  of  it  in  President  Johnson's  Proclama- 
tion of  Aug.  20,  1806,  14  U.  S.  Stat.  App.  i. 

2  Report  No.  ?>0 ;  being  2d  vol.  Ilcuse  Reports  of  Select  Committees  of 
1st  Session  3t)lh  Congress. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  43 

Report  of  the  Committee  on  Reconstruction. 

on  the  part  of  tlie  Rebellion,  and  its  final  suppression  by 

military  force  alone,  it  is  said,  — 

[i]  "  It  cannot,  we  think,  he  denied  hy  any  one,  having  a  toler- 
able acquaintance  with  pubHc  law,  that  the  war  thus  waged  was  a 
civil  war  of  the  greatest  magnitude.  The  people  waging  it  were 
necessarily  subject  to  all  the  rules  which,  by  the  law  of  nations, 
control  a  contest  of  that  character,  and  to  all  the  legitimate  conse- 
quences following  it.  One  of  those  consequences  was  that  within 
the  limits  prescribed  by  humanity,  the  conquered  rebels  were  at  the 
mercy  of  the  conquerors.  That  a  government  thus  outraged  had  a 
most  perfect  right  to  exact  indemnity  for  the  injuries  done,  and 
security  against  the  recurrence  of  such  outrages  in  the  future  would 
seem  too  clear  for  dispute.  What  the  nature  of  that  security  should 
be,  what  proof  should  be  required  of  a  return  to  allegiance,  what  time 
should  elapse  before  a  jieople  thus  demoralized  should  be  restored 
in  full  to  the  enjoyment  of  political  rights  and  privileges,  are  ques- 
tions for  the  law-making  power  to  decide,  and  that  decision  must 
depend  on  grave  considerations  of  the  public  safety,  and  the  general 
welfare. 

[f]  "  It  is  moreover  contended,  and  with  apparent  gravity,  that 
from  the  peculiar  nature  and  character  of  our  government  no  such 
right  on  the  part  of  the  conqueror  can  exist ;  that  from  the  mo- 
ment when  rebellion  lays  down  its  arms,  and  actual  hostilities  cease, 
all  political  rights  of  rebellious  communities  are  at  once  restored  ; 
that  because  the  people  of  a  State  of  the  Union  were  once  an  or- 
ganized community  within  the  Union,  they  necessarily  so  remain, 
and  their  right  to  be  represented  in  Congress,  at  any  and  all  times, 
and  to  participate  in  the  government  of  the  country  under  all  cir- 
cumstances, admits  of  neither  question  nor  dispute.     If  this,"  &c. 

[rf]  "  Your  committee  do  not  deem  it  either  necessary  or  proper 
to  discuss  the  question  whether  the  late  Confederate  States  are  still 
States  of  this  Union,  or  can  ever  be  otherwise.  Granting  -^  this 
profitless  abstraction  about  which  so  many  words  have  been  wasted, 
it  by  no  means  follows  that  the  people  of  those  States  may  not 

1  From  tlie  context  it  must  be  inferred  that  the  committee  granted  to  the 
so  called  conservatives  tliat  tlie  States  were  still  States  in  the  Union,  and 
could  not  be  otherwise. 

Of  interest  in  connection  with  the  decisions  already  cited  and  with  this 


44  EXISTENCE   OF   THE   STATES   IN"  UNION. 

Report  of  the  Committee  on  Reconstruction. 

place  themselves  in  a  condition  to  abrogate  the  powers  and  priv- 
ileges incident  to  a  State  of  the  Union,  and  deprive  themselves  of 
all  pretence  of  right  to  exercise  those  powers  and  enjoy  those  priv- 
ileges. A  State  within  the  Union  has  obligations  to  discharge  as  a 
member  of  the  Union.  It  must  submit  to  federal  laws  and  uphold 
federal  authority.  It  must  have  a  government  republican  in  form, 
under,  and  by  which,  it  is  connected  with  the  general  government, 
and  through  which  it  can  discharge  its  obligations.  It  is  more 
than  idle,  it  is  a  mockery,  to  contend  that  a  people  who  have  thrown 
off  their  allegiance,  destroyed  the  local  government  which  bound 
their  States  to  the  Union  as  members  thereotj  defied  its  authority, 
refused  to  execute  its  laws,  and  abrogated  every  pr(5vision  which 
gave  them  political  rights  within  the  Union,  still  retain,  through 
all,  the  perfect  and  entire  right  to  resume,  at  their  own  will  and 
pleasure,  all  their  privileges  within  the  Union,  and  especially  to 
participate  in  its  government  and  to  control  the  conduct  of  its 
affairs.  To  admit  such  a  principle  for  one  moment,  would  be  to 
declare  that  treason  is  always  master,  and  loyalty  a  blunder.  Such 
a  principle  is  void  by  its  very  nature  and  essence,  because  inconsis- 
tent with  the  theory  of  government  aud  fatal  to  its  very  existence. 

report,  is  the  language  of  Judge  Nelson  two  years  later,  June,  1868,  In  re 
Egan,  5  Blatchford,  323  :  "  For  aught  that  appears,  the  civil  local  courts  of 
the  State  of  South  Carolina  were  in  the  full  exercise  of  their  judicial  func- 
tions at  the  time  of  this  trial,  [  by  court  martial,  Nov.  20,  1865  ]  as  restored 
by  the  suppression  of  the  rebellion,  some  seven  months  previously,  and  by 
the  revival  of  the  laws  and  the  reorganization  of  the  State  Government,  in 
obedience  to,  and  in  conformity  with,  its  constitutional  duties  to  the  Federal 
Union.  Indeed,  long  previous  to  this,  a  Provisional  Governor  had  been  ap- 
pointed by  the  President,  who  is  commander-in-chief  of  the  army  and  navy 
of  the  United  States  (and  whose  will,  under  martial  law,  constituted  the  only 
rule  of  action),  for  the  special  purpose  of  changing  the  existing  state  of 
things  and  restoring  civil  government  over  the  people.  In  pursuance  of 
this  appointment  a  new  Constitution  had  been  formed,  a  Governcn-  and  a 
Legislature  had  been  elected  under  it,  and  the  State  was  in  the  full  enjoy- 
ment, or  was  entitled  to  the  full  enjoyment,  of  all  her  constitutional  rights 
and  privileges.  The  Constitution  and  laws  of  the  United  States  were  there- 
by acknowledged  and  obeyed,  and  were  as  authoritative  and  binding  over 
the  people  of  the  State,  as  in  any  other  portion  of  the  country.  Indeed,  the 
moment  the  rebellion  was  suppressed,  and  the  government  growing  out  of  it 
was  subverted,  the  ancient  possession,  authority,  and  laws  resumed  tlieir  ac- 
customed sway,  sul)ject  only  to  the  new  reorganization  or  the  appointment 
of  proper  officers  to  give  them  operation  and  eii'ect." 


THEORY  OF  OUR  NATIONAL  EXISTENCE.  45 

Report  of  the  Committee  on  Reconstruction. 

[e]  "  On  the  contrary,  we  assert  that  no  portion  of  the  people  of 
this  country,  whether  in  State  or  Territory,  have  the  right,  wliile 
remaining  on  its  soil,  to  withdraw  from  or  reject  the  authority  of 
the  United  States.  They  must  obey  its  laws  as  paramount  and 
acknowledge  its  jurisdiction.  They  have  no  right  to  secede ;  and 
while  they  can  destroy  their  State  governments  and  place  them- 
selves beyond  the  pale  of  the  Union,  so  far  as  the  exercise  of  State 
privileges  is  concerned,  they  cannot  escape  the  obligations  imposed 
upon  them  by  the  Constitution  and  the  laws,  nor  impair  the  exercise 
of  national  authority.  The  Constitution,  it  will  be  observed,  does 
not  act  upon  States,  as  such,  but  upon  the  people ;  while,  there- 
fore, the  people  cannot  escape  its  authority,  the  States  may,  through 
the  act  of  their  people,  cease  to  exist  in  an  organized  form,  and 
thus  dissolve  their  political  relations  with  the  United  States." 

After  some  notice  of  the  question  as  affected  by  the 
principle  "  that  taxation  should  be  only  with  the  consent 
of  the  taxed,  through  their  own  representatives,"  it  is  said 
further  in  the  report,  — 

[/]  "  While  thus  exposing  fallacies  which,  as  your  committee 
believe,  are  resorted  to  for  the  purpose  of  misleading  the  people, 
and  distracting  their  attention  from  the  questions  at  issue,  we 
freely  admit  that  such  a  condition  of  things  should  be  brought,  if 
possible,  to  a  speedy  determination.  It  is  most  desirable  that  the 
Union  of  all  the  States  should  become  perfect,  consistent  with  the 
peace  and  welfare  of  the  nation ;  that  all  these  States  should  be- 
come fully  rei^resented  in  the  national  councils,  and  take  their  share 
in  the  legislation  of  the  country  "...  &c. 

The  committee  proceed  to  notice  the  question  of  placing 
"  the  qualifications  for  voters  in  a  State  within  the  power 
of  Congress,"  the  doubts  as  to  the  existence  of  the  power, 
and  "  whether  the  States  would  consent  to  surrender  a 
power  they  had  always  exercised,  and  to  which  they  were 
attached,"  and  the  proposition  for  modifying  that  power, 
as  now  expressed  in  the  Fifteenth  Amendment.  After 
some  discussion  of  President  Johnson's  methods  of  Recon- 
struction, it  is  further  said,  — 


46  EXISTENCE   OF  THE   STATES  IN  UNION. 

Report  of  the  Committee  on  Reconstruction. 

[^f]  ''If,  as  the  President  assumes,  these  insurrectionary  States 
were,  at  the  close  of  the  war,  wholly  without  State  governments,  it 
would  seem  that,  before  being  admitted  to  participation  in  the 
direction  of  public  affairs,  such  governments  should  be  regularly  or- 
ganized. Long  usage  has  established,  and  numerous  statutes  have 
pointed  out,  the  mode  in  which  this  should  be  done.  A  convention 
to  frame  a  form  of  government  should  be  assembled  under  compe- 
tent authority.  Ordinarily,  this  authority  emanates  from  Congress  ; 
but,  under  the  peculiar  circumstances,  your  committee  is  not  dis- 
posed to  criticise  the  President's  action  in  assuming  the  power 
exercised  by  him  in  this  regard."  .  .  . 

Further  on  it  is  remarked  in  the  same  report,  — 

[^]  "  It  would  undoubtedly  be  competent  for  Congress  to  waive 
all  formalities,  and  to  admit  these  Confederate  States  to  represen- 
tation at  once,  trusting  that  time  and  experience  would  set  all 
things  right." 

In  concluding,  the  committee  "propose  to  re-state  as 
briefly  as  possible,  the  general  facts  and  principles  appli- 
cable to  all  the  States  recently  in  rebellion." 

These  are  classed  under  ten  paragraphs,  all  of  which  are 
important  in  bearing  on  the  general  question,  but  cannot 
be  fully  cited  here. 

In  the  first  j)aragraph,  after  stating  the  initiatory  acts  of 
the  rebellion,  it  is  said  :  — 

"  From  the  time  these  Confederate  States  thus  withdrew  their 
representation  in  Congress  and  levied  war  against  the  United 
States,  the  great  mass  of  their  people  became  and  were  insurgents, 
rebels,  traitors,  and  all  of  them  assumed  and  occupied  the  political, 
legal,  and  practical  relation  of  enemies  of  the  United  States.  This 
position  is  established  by  acts  of  Congress  and  judicial  decisions, 
and  is  recognized  repeatedly  by  the  President  in  public  proclama- 
tions, documents,  and  speeches." 

In  the  second  j)aragraph  :  — 

"  The  States  thus  confederated  prosecuted  their  war  against  the 
United  States  to  final  arbitrament,  and  did  not  cease  until  all  their 
armies  were  .  .  .  every  vestige  of  State  and  Confederate  govern- 


THEORY   OF   OUR    NATIONAL   EXISTENCE.  47 

Report  of  tlie  Comniittee  on  Reconstruction. 

men t  obliterated,  their  territory  overrun  and  occupied  by  the  federal 
armies,  and  their  people  reduced  to  the  condition  of  enemies  con- 
quered in  war,  entitled  only  by  public  law  to  such  rights,  privileges, 
and  conditions  as  might  be  vouchsafed  by  the  conqueror.  This 
position  is  also  established  by  judicial  decisions,  and  is  recognized  by 
the  President  in  public  proclamations,  documents,  and  speeches." 

Under  the  third  paragraph  :  — 

"  Having  voluntarily  deprived  themselves  of  representation  in 
Congress  for  the  criminal  purpose  of  destroying  the  federal  Union, 
and  having  I'educed  themselves,  by  the  act  of  levying  war,  to  the 
condition  of  public  enemies,  they  have  no  right  to  complain  of 
temporary  exclusion  from  Congress  :  but,  on  the  contrary,  having 
voluntarily  renounced  the  right  to  representation,  and  disqualified 
tliemselves  by  crime  from  participating  in  the  government,  the 
burden  now  rests  upon  them,  before  claiming  to  be  reinstated  in 
their  former  condition,  to  show  that  they  are  qualified  to  resume 
federal  relations.  In  order  to  do  this  they  must  prove  that  they 
have  established,  with  the  consent  of  the  peoj^le,  republican  forms 
of  government  in  harmony  with  the  Constitution  and  laws  of  the 
United  States,  that  all  hostile  purposes  have  ceased,  and  should  give 
adequate  guarantees  against  future  treason  and  rebellion,  —  guar- 
antees which  shall  prove  satisfactory  to  the  government  against 
which  they  rebelled  and  by  whose  arms  they  were  subdued." 

Under  the  fourth  paragraph  :  — 

"  Having,  by  this  treasonable  withdrawal  from  Congress,  and  by 
flagrant  rebellion  and  war,  forfeited  all  civil  and  political  rights 
and  privileges  under  the  federal  constitution,  they  can  only  be 
restored  thereto  by  the  permission  and  authority  of  that  constitu- 
tional power  against  which  they  rebelled  and  by  which  they  were 
subdued." 

Under  the  fifth  paragraph  :  — 

"  These  rebellious  enemies  were  conquered  by  the  people  of  the 
United  States,  acting  through  all  the  co-ordinate  branches  of  the 
government  and  not  by  the  executive  department  alone." 

Tlie  remainder  of  this  j)aragraph  and  the  five  following 
relate  mainly  to  the  contest  then  going  on  between  Presi- 


48  EXISTENCE   OF   THE   STATES    IN"   UNION. 

Diversity  of  Opinions.    A  Minority  Report. 

dent  Johnson  and  Congress,  which  it  is  not  necessary  to 
consider  here. 

Finally,  it  is  remarked  :  — 

"  Before  closing  this  report,  your  committee  beg  leave  to  state 
that  the  specific  recommendations  submitted  by  them  are  the  result 
of  mutual  concession  after  long  and  careful  comparison  of  conflict- 
ing opinions.  Upon  a  question  of  such  magnitude,  infinitely  im- 
portant as  it  is  to  the  future  of  the  republic,  it  was  not  to  be  expected 
that  all  should  think  alike.  .  .  ."  -^ 

In  reading  these  extracts  it  should  be  remembered  that 
not  only  were  the  "  specific  recommendations  submitted," 
that  is,  the  amendment  and  legislation  proposed,  but  the 
Report  itself  was,  also,  the  result  of  more  or  less  com- 
promise from  a  variety  of  more  or  less  discordant  opinions ; 
and  also  that  it  was  composed  with  special  reference  to  a 
view  of  the  nature  of  the  Union  supposed  to  be  antago- 
nistic to  any  accepted  by  any  member  of  the  majority  of 
the  committee  ;  which  view  had  been  supported  by  Mr. 
Johnson,  in  his  messages  and  proclamations,  and  was  fur- 
ther illustrated  and  defended  by  the  minority  of  the  same 
committee. 

The  report  made  by  this  minority,  June  20,  186G,  which 
also  was  printed  with  the  Reports  of  committees  of  this 
Congress,^  may  contain  propositions  of  much  truth  and 
arguments  of  great  force,  but  as  it  was  not  the  basis  of 
any  political  action  of  the  government,  this  is  not  the  place 
to  cite  from  it;  though  some  of  its  positions  may  be  no- 
ticed further  on  in  these  pages. 

1  The  great  diversity  of  opinion  prevailing  among  members  of  the  House 
at  this  time  may  be  judged  by  tlie  many  various  Resolutions  in  the  Journals 
of  the  1st  and  2d  session  of  the  39th  Congress  relating  to  the  general  subject 
of  reconstruction.  See  also  Macpherson's  Hist.,  p.  310,  and  Wilson's  Hist, 
of  Reconstruction. 

^  Report  No.  30,  Part  2. 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  49 

Belligerency  considered,  in  Supreme  Court. 


CHAPTER     IL 

The  Subject  contintted  by  Examinatiox  of  the  Language  op  the 
Several  Departments  of  the  Government  in  Reference  to  Ques- 
tions OF  Belligerency  and  Treason.  —  A  Chaos  of  Doctrine. 

There  may  be  differences  of  opinion  as  to  that  capacity  of 
.the  executive  to  institute  a  blockade,  and  of  the  judiciary 
to  recognize  it,  as  arising  from  an  existing  state  of  war  in- 
volving the  exercise  of  belligerent  rights,  which  was  as- 
serted by  the  majority  in  the  Prize  Cases,  2  Black,  667,  in 
which  instance  the  minorit}^  referred  the  power  to  Con- 
gress. But  the  settlement  of  this  doubt  is  not  material  to 
the  inquiry,  To  whom  did  the  court  attribute  belligerency 
when  recognized  ? 

The  eleven  Southei-n  States  were  declared  the  party  bel- 
ligerent, in  those  cases  at  the  December  Term,  1862,  in 
the  majority  opinion  delivered  by  Mr.  Justice  Grier,  con- 
taining references  to  the  States,  such  as  these  :  "  Hence,  in 
organizing  this  rebellion  they  have  acted  as  States  [Ital.  in 
report]  claiming  to  be  sovereign."  2  Black,  669.  "  A  civil 
war,  such  as  that  now  waged  between  the  Northern  and 
the  Southern  States."     lb.  673.1 

1  It  would  appear  that  the  division  of  opinion  in  this  case  was,  essen- 
tially, as  to  the  nature  of  a  State  in  the  Union.  Mr.  Justice  Grier's  concep- 
tion of  such  a  State  involved  recognition  of  the  capacity  for  international 
war,  independently  of  the  degree  of  military  power  actually  exhibited  in 
operation.  See  ante,  p.  17,  and  note  to  the  same  judge's  dissenting  opinion, 
in  Texas  v.  White.  This  had  been  the  position  taken  by  Judge  Sprague 
in  the  Amy  Warwick,  2  Sprague's  Decisions,  143, 14  Montldy  Law  Reporter, 
498,  which  was  one  of  these  Prize  Cases.  See  post,  p.  16G.  But  it  is  not 
certain  that  the  other  justices  concurring  in  the  opinion  delivered  by  Mr. 
Justice  Grier  in  the  Prize  Cases  took  the  same  view  of  the  State's  capacity. 
They  may  have  considered  the  insurgents  personally  as  constituting  a  bel- 
ligerent party  as  known  to  the  law  of  public  war. 


50  STATES   AS   PARTIES   IN   "WAR. 

The  Prize  Cases.    View  of  the  Minority. 

In  the  minority  oj)inion,  by  Mr.  Justice  Nelson,  with 
Taney,  Chief  Justice,  and  Catron  and  Clifford,  JJ.,  con- 
curring, the  recognition  of  the  conditions  of  belligerency  is 
limited  to  the  time  after  the  Act  of  Congress  of  July  13, 
1861,  with  the  distinction  that,  before  that  date,  the  insur- 
gents "personally,"  or  independently  of  recognized  politi- 
cal organizations  and  territorial  boundaries,  could  not  be 
considered,  by  the  executive  and  judiciary,  as  a  belligerent, 
in  a  war  ;  as  defined  by  the  law  of  nations  ;  such  as  would 
authorize  the  President  alone  to  institute  a  blockade.^ 

But  the  discrimination  of  the  States  as  the  public  enemy, 
in  the  war  when  so  recognized,  is  made  as  distinctly  in  the 
opinion  of  the  minority  as  in  that  of  the  majority. 

Mr.  Justice  Nelson  said,  — 

"  This  Act  of  Congress,  we  think,  recognized  a  state  of  civil  war 
between  this  government  and  the  Confederate  States,  and  made  it 
territorial."  2  Black,  695,  "  We  agree,  therefore,  that  the  Act 
of  July  13,  1861,  recognized  a  state  of  civil  war  between  the  gov- 
ernment and  the  peojile  of  ,the  States  described  in  that  proclama- 
tion." lb.  696.  "I  am  compelled  to  the  conclusion  that  no  civil 
war  existed  between  this  government  and  the  States  in  insurrection, 
till  recognized  by  the  Act  of  Congress  of  July  13,  1861."     lb.  698.^ 

It  may  be  supposed  that  as  to  all  cases  which  arose  after 
the  Act  of  Congress  of  July  13,  1861,  the  court  regarded 
the  discrimination  of  the  party  belligerent  as  settled,  either 
by  its  own  judgment  or  by  the  authority  of  the  legislative 

1  Tlic  distinction  intended  by  Judge  Nelson  appears  clearer  by  compar- 
ing Mauran  v.  Ins.  Co.,  6  Wall.  1,  in  which,  also,  he  delivered  the  opinion  of 
the  court,  sustaining  the  claim  against  the  insurers  for  loss  by  a  capture  or 
seizure  on  the  lower  Mississippi,  May  17,  1861 ;  that  is,  before  the  Congres- 
sional recognition  of  war,  as  the  act  of  "  a  ^'f/ffsZ-government,  or  government 
de  favto,"  —  "  the  riding  power  of  the  country  at  that  time."  Chase,  C.  J., 
and  Swayne,  J.,  dissented  ;  but  their  reasons  are  not  stated. 

-  Could  it  be  said  on  the  authority  of  tliese  cases,  that  the  existence  of  a 
state  of  war  may  be  within  the  competency  of  the  judiciary,  as  a  legal  ques- 
tion, while  the  determination  of  the  party  belligerent  is  beyond  that  com- 
petency, as  being  a  political  question  ? 


THEORY   OF   OUR    NATIONAL   EXISTENCE.  51 

Position  of  the  Confederate  Government. 

and  executive  departments.  The  terms  "  Rebel  States," 
"insurrectionary  States,"  "States  in  rebellion,"  "rebel- 
lious States,"  are  in  ordinary  use,^  and  there  is  no  further 
attempt  to  discriminate  an  insurgent  population,  or  a  de 
facto  military  organization,  as  the  party  belligerent,  in  dis- 
tinction from  States  with  recognized  political  capacity  to 
wage  war :  unless,  perhaps,  exceptions  may  occur,  when 
speaking  of  the  acts  of  the  Confederate  government.  An 
illustration  of  this  may  be  found  in  the  language  of  the 
court  in  Hickman  v.  Jones,  9  Wall.  197,  a  case  founded  on 
a  claim  for  damages  by  reason  of  a  prosecution  in  a  Con- 
federate District  Court,  for  treason  against  the  Confederacy. 
In  the  opinion  delivered  by  Mr.  Justice  Swayne,  ib.  200,  it 
is  said  :  — 

"  The  rebellion,  oiit  of  which  the  war  grew,  was  without  any 
legal  sanction.  In  the  eye  of  the  law,  it  had  the  same  properties 
as  if  it  had  been  the  insurrection  of  a  county  or  smaller  municipal 
territory  against  the  State  to  which  it  belonged.  The  proportions 
and  duration  of  the  struggle  did  not  affect  its  character.  Nor  was 
there  a  rebel  government  de  facto  in  such  a  sense  as  to  give  legal 
efficacy  to  its  acts.  It  was  not  recognized  by  the  national,  nor  by 
any  foreign  government.  It  was  not  at  any  time  in  possession  of 
the  capital  of  the  nation.  It  did  not  for  a  moment  displace  the 
rightful  government.  That  government  was  always  in  existence, 
always  in  the  regular  discharge  of  its  functions,  and  constantly  exer- 
cising all  its  military  power  to  put  down  the  resistance  to  its  au- 
thority in  the  insurrectionary  States.  The  union  of  the  States  for 
all   the  purposes  of  the  Constitution,  is  as  perfect  and  indissoluble 

1  See,  particularly,  Texas  r.  White,  7  Wall.  700;  Thornton  v.  Smith,  8 
Wall.  1 ;  The  Legal  Tender  Cases,  12  Wall.  553;  White  v.  Hart,  13  Wall. 
651;  Hamilton  v.  Dillon,  21  Wall.  86;  United  States  v.  Ins.  Co.,  22  Wall. 
102;  Mathews  v.  McStea,  1  Otto,  11.  The  cases  arising  under  the  Confisca- 
tion Acts,  and  particularly  those  sustaining  the  seizure  of  cotton,  as  a 
"  species  of  property  excepted,  by  its  peculiar  character,  and  by  circum- 
stances from  the  general  rule  of  international  law  "  (2  Wall.  204;  9  Wall. 
540),  were  decided  in  the  Supreme  Court  under  a  stringent  application  of 
the  idea  of  treating  the  States  and  their  inhabitants  as  alien  enemy.  See 
post,  under  the  question  of  treason. 


52  VIEWS   OF  THE   BELLIGERENCY. 

B.  T.  Johnson's  Statement  in  Chase's  Decisions. 

as  the  union  of  the  integral  parts  of  the  States  themselves ;  and 
nothing  but  revolutionary  violence  can,  in  either  case,  destroy  the 
ties  which  hold  the  parts  together.  For  the  sake  of  humanity,  cer- 
tain belligerent  rights  vrere  conceded  to  the  insurgents  in  arms.  But 
the  recognition  did  not  extend  to  the  pretended  government  of  the 
Confederacy.  The  intercourse  was  confined  to  its  military  authori- 
ties. In  no  instance  was  their  intercourse  otherwise  than  of  this 
character." 

In  the  preface  to  his  edition  of  a  selection  from  Chase's 
Decisions,  Mr.  B.  T.  Johnson  quotes  from  his  own  address 
at  the  meeting  of  the  Richmond  bar,  on  the  occasion  of  the 
decease  of  the  Chief  Justice  :  "  His  decisions  have  been 
followed  by  the  Supreme  Court,  whose  adjudications  they 
preceded,  and  we  are  indebted  to  him  for  the  policy  of  the 
law  adopted  and  enforced  by  that  tribunal."  He  further 
stated  of  the  Chief  Justice,  in  the  same  connection,  that,  — 

"  Rising  at  once  to  the  greatness  of  the  occasion,  he  eliminated 
and  declared  the  principles  of  public  law  which  controlled  our  cir- 
cumstances, and  from  them  marked  out  an  application  which  oper- 
ated as  amnesty,  peace,  and  security  for  life  and  property.  In  the 
case  of  Keppell's  Administrator  v.  The  Petersburg  Railroad,  he 
announced  that  the  contest  through  which  we  had  gone  was  a 
civil  war,  and  that  all  the  consequences  of  general  war  followed 
from  it.  He  declared  that  the  acts  of  the  governments  belligerent 
to  the  Federal  government,  &c.  .  .  .  Following  these  broad  and 
beneficent  declarations  of  legal  principles  controlling  the  status  of 
the  late  Confederate  States,  &c.  .  .  .  The  existence  of  the  State 
governments  de  facto  being  granted,  all  their  acts,"  &c.  Preface, 
xiii.,  xiv. 

The  decision  Mr.  Johnson  relies  on,  was  in  Keppel's 
Adm'r  v.  Petersburg  Railroad,  May,  1868,  "  as  being  the 
first  outgiving  from  him  of  the  change  which  was  going  on 
in  his  mind  since  the  case  of  Shortridge  v.  Macon," 
June,  1867.  Preface  iii.  As  I  read  these  opinions,  even 
with  that  softening  of  expression  which  the  editor  says 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  53 

B.  T.  Johnson's  Statement  in  Chase's  Decisions. 

they  have  undergone  under  the  deceased  judge's  direction, 
there  is  no  departure  from  the  position  in  the  earlier  case, 
and  it  is  not  at  all  clear  that  the  Chief  Justice  ever  did 
more  than  recognize  a  de  facto  belligerent,  without  intend- 
ing any  particular  recognition  of  the  eleven  States,  in  their 
political  capacity  as  the  parties,  which  appears  to  be  the 
point  made  by  General  Johnson. 

But  this  had  been  done  by  the  court,  following  the 
action  of  Congress,  long  before.  Indeed,  Chief  Justice 
Chase  seems  always  to  have  avoided  the  recognition  of  the' 
States  as  the  party  belligerent.  In  United  States  v.  Mor- 
rison, June  Term,  1869,  Johnson's  Chase's  Decisions,  625, 
in  charge  to  the  jury,  he  said,  "  The  national  government 
conceded  belligerent  rights  to  the  armies  of  the  insurgent 
States  during  the  late  civil  war." 

Chief  Justice  Chase  seems  to  have  accepted  the  customs 
of  international  war  as  applicable  in  governing  these  States 
by  the  military  power  for  a  certain  time,  see  Merchant's 
Bank  v.  Union  Bank,  22  Wall.  293  (citing  the  Grape-shot, 
9  Wall.  129)  :  but  without  any  distinct  recognition  of 
those  States  as  being  politically  belligerent  powers ;  and 
that  this  was  his  view  may  appear  by  comparing  the  dis- 
senting opinion  in  that  case  by  Field,  J.  He  also  sup- 
ported an  extreme  application  of  belligerent  capacity,  dur- 
ing the  war,  in  the  cotton-seizure  cases  (ante,  p.  51,?i.).  But 
whether  he  adopted  the  conquest  theory,  to  the  extent  of 
Judge  Swayne's  opinion  in  White  v.  Hart,  seems  very 
doubtful. 

To  appreciate  more  accurately  the  position  of  the  judi- 
ciary on  a  question  of  this  nature,  which  could  hardly 
await  the  lingering  approach  of  legal  procedure,  we  may 
properly  compare  the  contemporary  language  of  the  execu- 
tive and  legislative.  The  same  comparison  may  throw 
much  light  on  the  origin  of  the  political  doctrine  as  to 
State  existence  which  has  been  set  forth  as  legal  judgment 


54  POSITION   OF   THE  EXECUTIVE. 

President  Lincoln's  View  of  tlie  Belligerency. 

in  Texas  v.  White,  or  in  later  cases  supposed  to  be  in 
harmony  with  it. 

In  the  earliest  stages  of  the  rebellion  and  civil  war,  there 
was  necessarily  a  doubt  how  far  any  act  of  violence,  by 
sea  or  land,  by  persons  claiming  to  have  authority  from 
the  States,  as  political  organizations,  would  be  recognized 
by  any  government  as  beyond  the  jurisdiction  of  ordinary 
criminal  procedure  ;  that  is,  would  be  taken  by  the  gov- 
ernment of  the  United  States  or  by  foreign  nations  for  the 
act  of  some  belligerent  power.^ 

Mr.  Lincoln,  in  a  proclamation,  April  19,  1861,  12  Stat. 
U.  S.  1262,  1  Reb.  Rec.  78,  Macpherson's  Pol.  Hist,  of  the 
Rebellion,  149,  declared  such  acts  at  sea  "  under  the  pre- 
tended authority  of  the  said  States  "  punishable  as  piracy. 
But  the  fact,  tliat  this  position  was  abandoned,  would  set- 
tle nothing  as  to  the  question  whether  the  belligerent  rec- 
ognized was  the  States,  as  politically  capable  of  war,  or 
was  an  insurrectionary  military  organization,  as  a  de  facto 
belligerent  power. 

President  Lincoln's  judgment  seems  to  have  wavered 
between  a  first  conception  of  the  rebellion,  as  the  act  of 
individual  inhabitants  of  States  regarded  only  as  certain 
geographical  districts,  and  a  later  one,  more  in  harmony, 
perhaps,  with  the  action  of  the  other  departments  and  with 
popular  ideas,  in  which  the  movement  was  attributed  to 
the  States  as  political  bodies. 

Mr.  Lincoln's  first  proclamation,  April  15, 1861, 12  U.  S. 
Stat.,  1258,  I.  Reb.  Rec,  64,  Macph.  Hist.,  114,  called  out 
the  militia,  "  To  suppress  unlawful  combinations  too  pow- 

1  This  doubt  appears  in  Mr.  Lincoln's  earlier  messages.  The  action,  or 
want  of  action,  by  Mr.  Lincoln's  predecessor,  was  derived  from  a  directly 
opposite  view  of  duty,  because,  with  his  tlieory  of  the  Union,  he  could  re- 
gard the  States  as  each  politically  capable  of  waging  war,  and  therefore 
could  not  hold  personally  responsible  individual  citizens  acting,  as  he  sup- 
posed, under  their  authority.  See  President  Buchanan's  Last  Message, 
Dec.  4,  1860,  with  the  opinion  by  Attorney-General  Black  ;  Macpherson's 
Pol.  Hist.  49,  5L 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  55 

President  Lincoln's  View  of  the  Belligerency. 

erful  to  be  suppressed  by  the  ordinary  course  of  judicial 
proceedings,  or  by  the  powers  vested  in  the  magistrates  by 
law."  That  of  April  19, 1861,  12  U.  S.  Stat,  1258,  I.  Reb. 
Rec,  78,  Macpherson,  149,  which  is  that  declaring  the 
blockade  of  certain  ports,  recites,  "  Whereas  an  insurrec- 
tion against  the  Government  of  the  United  States  has 
broken  out  and  yet  exists  in  the  States  of,"  &c.,  "  and  a 
combination  of  persons  engaged  in  such  insurrection  have," 
&c.  That  of  August  16,  1861,  12  U.  S.  Stat.,  1262,  11. 
Reb.  Rec.  532,  Macpherson,  149,  prohibiting  commercial 
intercourse  with  certain  States,  recites,  "  Whereas  such 
insurrection  has  since  broken  out  and  yet  exists  in  the 
States  of  Virginia,"  &c.,  "and  whereas  the  insurgents  in 
all  the  said  States  claim  to  act  under  the  authority  thereof, 
and  such  claim  is  not  disclaimed  or  repudiated  by  the 
persons  exercising  the  functions  of  government  in  such 
State  or  States,  or  in  the  part  or  parts  thereof  in  which 
such  combinations  exist,  nor  has  such  insurrection  been 
suppressed  in  said  States." 

But  that  of  July  1,  1862,  12  U.  S.  Stat.,  1266,  V.  Reb. 
Rec.  296,  Macpherson,  150,  declaring  that  certain  "  States 
and  parts  of  States  are  now  in  insurrection  and  rebel- 
lion," follows  the  phraseology  of  the  Act  of  Congress  of 
June  7,  1862,  13  U.  S.  Stat.  730.  His  proclamation  of 
June  15,  1863,  13  U.  S.  Stat.  733,  VII.  Reb.  Rec.  309, 
recites,  "  Whereas  armed  insurrectionary  combinations  now 
existing  in  several  of  the  States  are  threatening,"  &c. 
That  of  December  8,  1863,  13  U.  S.  Stat.  737,  VIII.  Reb. 
Rec.  295,  Macpherson,  147,  reciting,  "  Whereas  a  rebellion 
exists,  whereby  the  loyal  State  governments  of  several 
States  have  for  a  long  time  been  subverted,"  &c.  has 
already  been  noticed. ^ 

Mr.  Lincoln's  later  proclamations  always  designate  the 

1  Ante,  p.  35. 


56  FOREIGN  RECOGNITION   OF   STATES. 

View  taken  by  the  English  Government. 

inhabitants  as  distinguislied  from  the  /States,  as  the  parties 
chargeable.  In  that  of  July  8,  1864,  referring  to  the  bill 
herein  already  described,^  which  had  failed  to  receive  his  sig- 
nature, he  speaks  of  it  as  containing,  "  among  other  things 
a  plan  for  restoring  the  States  in  rebellion  to  their  proper 
practical  relation  in  the  Union."  But  he  seems  to  avoid 
using  the  same  expression  when  giving  his  own  view. 

The  internal  public  law,  or  constitution  of  any  country, 
is  matter  of  concern  and  recognition  to  foreign  powers,  just 
so  far  as  they  may  be  obliged  to  notice  the  facts  on  which 
it  rests.  The  aspect  in  which  a  nation  may  seem  to  pre- 
sent itself,  at  any  particular  time,  to  the  rest  of  the  world, 
is  therefore  a  material  element  in  the  establishment  of  its 
own  conscious  existence,  as  being  the  reflection  of  its  own 
assertion  of  its  internal  structure. 

The  position  occupied  by  a  country  in  its  international 
relations,  or  as  exhibited  in  its  international  diplomacy,  is 
more  directly  connected  with  the  executive  than  with  any 
other  department.  As  incidental,  therefore,  to  Mr.  Lin- 
coln's administration,  it  is  here  proper  to  notice  that 
the  British  government,  by  the  Queen's  proclamation  of 
neutrality,  May  13,  1861,  reciting  "  whereas  hostilities 
have  unhappily  commenced  between  the  government  of 
the  United  States  and  certain  States  calling  themselves  the 
Confederate  States  of  America,"  recognized,  not  merely  a 
state  of  war,  but  the  States  as  individually  capable,  by 
their  political  nature,  of  carrying  on  a  war ;  and  that  this 
policy  was  "  immediately  followed  by  similar  declarations 
or  silent  acquiescence,  by  other  nations.''  Grier,  J.  The 
Prize  Cases,  2  Black,  669. 

The  course  taken  by  the  British  government  at  this 
juncture,  excited  much  feeling  at  the  North.^     But,  as  far 

1  Ante,  p.  37. 

2  Much  of  this  feeling  was  based  on  a  presumed  claim  for  sympathy  as 
against  "  a  slaveholder's  rebellion." 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  57 

President  Johnson's  View  of  the  Belligerency. 

as  I  have  been  able  to  make  out,  it  was  chiefly  on  the 
ground  that  the  action  was  precipitate;  as  liaving  been 
taken  irrespectively  of  any  knowledge  of  the  actual  mili- 
tary power  of  the  southern  forces.  This  circumstance,  if 
admitted,  showed  more  clearly  the  idea  of  the  political 
existence  of  the  States  in  the  Union  which  was  accepted 
in  England.^ 

But  I  am  not  aware  that  in  any  exception  taken  at  the 
time,  the  recognition  of  the  /States  as  the  parties  to  the 
war  was  declared  more  objectionable  than  recognition  of 
the  insurgents  as  a  belligerent  party,  in  consequence  of 
their  actual  military  power. 

President  Johnson,  in  his  proclamation  of  May  10,  1865, 
13  U.  S.  Stat.,  757,  recites,  "  Whereas  the  President  of  the 
United  States  [Mr.  Lincoln]  by  his  proclamation  of  April 
19,  1861,  did  declare  certain  States  therein  mentioned,  in 
insurrection  against  the  Government  of  the  United  States, 
and  whereas  armed  resistance  to  the  authority  of  the 
Government  in  the  said  insurrectionary  States,"  &c.  It  is 
not  in  the  least  probable  that  Mr.  Johnson  had  any  inten- 
tion to  misstate  his  predecessor's  views.  So  it  would  seem 
that  he  had  not  understood  jMr.  Lincoln's  language,  in  that 
instance,  as  indicating  his  intention  to  avoid  recognition  of 

1  The  wording  of  Lord  John  Russell's  dispatch,  May  G,  1861,  to  Lord 
Lyons,  is,  —  "a  civil  war  which  has  broken  out  between  the  several  States  of 
the  late  Union.  For  the  present,  at  least,  those  States  have  separated  into 
distinct  confederacies,  and,  as  such,  are  carrying  on  war  against  each  other." 
Bemis,  On  the  Hasty  Recognition  of  Rebel  Belligerency,  pp.  12,  13.  In  the 
letter  to  the  London  Times,  March  18,  1861,  signed  Historictts,  it  is  said, 
ib.  51,  "  The  Confederate  States  had  belligerent  rights  by  the  mere  fact  of 
being  at  war.  They  acquired  these  riglits  immediately  that  a  state  of  hostil- 
ities arose  by  the  North  going  to  war  witli  them,  or  their  going  to  war  with 
the  North.  Their  title  to  belligerent  rights  was  derived  not  from  the  con- 
cession of  any  foreign  power,  but  from  the  established  code  of  the  law  of 
nations.  .  .  .  They  went  to  war  of  tlieir  own  will  and  pleasure,  and  from 
the  moment  they  did  so,  the  enjoyment  of  belligerent  rights  accrued  to 
them  as  a  matter  of  course." 

If  there  was  weakness  in  the  position  of  the  English  government,  in  a 
diplomatic  relation,  it  was  from  not  resting  plainly  on  this  single  basis. 


58  WAR   LEGISLATION"   OF   CONGRESS. 

Language  of  Congress  on  Belligerency. 

the  States  as  the  parties  chargeable  with  rebellion  and 
treason.  In  his  proclamation  of  August  20,  1866,  14  U.  S. 
Stat.  (39th  Cong.)  append,  iv.,  he  recited  the  series  of 
proclamations  by  ]\Ir.  Lincoln,  from  that  of  April  19, 1861, 
to  that  of  September  15,  1863,  and  also  refers  to  resolu- 
tions of  the  House  of  Representatives  of  July  22  and  25, 
1861,  as  speaking  of  "  a  civil  war  forced  upon  the  country 
by  the  disunionists  of  the  southern  States  now  in  revolt 
against  the  constitutional  government."  But  he  does  not 
appear  to  have  noticed  their  language  as  discriminating 
between  the  States  and  citizens  or  inhabitants,  as  the  parties 
in  rebellion. 

A  variation  of  language  corresponding  with  that  in  the 
proclamations  of  the  executive  may  be  traceable  in  Acts  of 
Congress  from  1861  to  1866. 

In  that  of  July  13,  1861,  entitled  An  Act  further  to  pro- 
vide for  the  collection  of  duties  on  imports  and  for  other 
purposes.,  12  U.  S.  Stat.,  p.  255,  it  would  seem  that  special 
care  had  been  taken  to  avoid  mention  of  the  States  as 
parties  in  rebellion.^  -In  the  first  section  it  reads  "by 
reason  of  unlawful  combinations  of  persons  in  opposition 
to  the  United  States  become  impracticable,"  &c.  In  §  5 : 
"  When  said  insurgents  claim  to  act  under  the  authority 
of  any  State  or  States  and  such  claim  is  not  disclaimed  or 
repudiated  by  the  persons  exercising  the  functions  of  gov- 
ernment in  such  State  or  States  ...  it  shall  be  lawful  for 
the  President,  by  proclamation,  to  declare  that  the  inhab- 
itants of  such  State,  or  any  section  or  part  thereof,  where 
such  insurrection  exists,  are  in  a  state  of  insurrection 
against  the  United  States." 

1  But  Mr.  Justice  Nelson  in  his  dissenting  opinion  in  the  Prize  cases,  2 
Black,  698,  (December  term,  1862,  nearly  one  year  and  a  half  later)  referred 
to  this  act  as  recognizing  war  between  the  government  and  "  States  in 
insurrection."  Similar  reference  to  the  tenor  of  this  act,  alone  or  in  con- 
nection with  later  acts,  on  matters  relating  to  the  rebelliou,  may  be  found 
injudicial  opinions  delivered  in  later  cases. 


THEORY  OF   OUR   NATIONAL   EXISTENCE.  59 

Popular  recognition  of  States  as  the  Parties. 

Nor  are  the  States  designated  as  tlie  parties  in  the  act 
of  July  29,  1861,  12  U.  S.  Stat.  p.  281,  An  Act  to  provide 
for  the  suppression  of  Rebellion  and  Resistance  to  the  Latvs 
of  the  United  States  ;  nor  in  tliat  of  July  31, 1861,  12  U.  S. 
Stat.,  p.  283,  For  giving  arms  to  loyal  citizens  of  the  States  of 
which  the  inhabitants  noiv  are  or  hereafter  may  be  in  rebellion^ 
&c. ;  nor  in  that  of  July  17,  1862,  12  U.  S.  Stat.,  p.  589, 
An  Act  to  suppress  insurrection,  to  punish  treason  and  rebel- 
lion, to  seize  and  confiscate  the  property  of  rebels,  ayid  for 
other  purposes.  And  such,  generally  speaking,  is  the  tenor 
of  all  later  acts  during  Mr.  Lincoln's  administration ;  ex- 
cept that  of  March  12, 1863,12  U.  S.  Stat.,  p.  820,  entitled 
An  Act  to  provide  for  the  collection  of  abandoned  property, 
and  for  the  prevention  of  fraud  in  insurrectionary  districts 
ivithin  the  United  States  ;  where  reference  is  made  to  "  in- 
surrectionary districts,"  and  to  "  any  State  or  Territory, 
or  any  portion  of  any  State  or  Territory,  of  the  United 
States  designated  as  in  insurrection  against,"  &c.,  &c.,  "by 
the  President's  proclamation  of  July  1,  1862 ;  and  except- 
ing also  the  supplementary  act  of  July  2,  1864,  13  U.  S. 
Stat.,  375,  where  the  terms  "  insurrectionary  States  "  and 
"  States  in  insurrection"  are  for  the  first  time  employed. 

Coming  to  expressions  used  by  Congress  during  Mr. 
Johnson's  presidential  term,  we  may  notice  the  three  Acts 
commonly  called  the  Reconstruction  Acts,  ante,  p.  40,  in 
each  of  which  the  phrase  "  rebel  States  of  Virginia,"  &c., 
occurs. 

Indeed,  it  may  be  stated  broadly,  that  the  peoj)le  of  the 
Northern  States,  without  distinction  of  party,  from  the 
beginning  of  the  rebellion  to  the  present,  have  shown,  in 
every  form  in  which  public  and  general  opinion  can  be 
expressed,  that  they  have  regarded  the  eleven  Southern 
States  as  the  parties  in  the  war  and  as  liable,  as  States,  — 
political  members  of  the  Union,  —  to  the  consequences  of 
their  action. 


60  THE   QUESTION   OF   TREASON. 

United  States  v.  Greathouse  :  In  the  Tentli  Circuit. 

This  view  is,  of  course,  that  which  the  people  of  these 
eleven  States  have  always  maintained ;  while,  in  accepting 
it,  neither  the  government  of  the  United  States,  nor  the 
people  of  the  Northern  States,  nor  the  party  which  has 
especially  sustained  the  administration,  during  the  war 
and  afterwards,  have  thought  themselves  open  to  self- 
blame,  or  to  criticism  from  any  quarter,  for  inconsistency 
in  denouncing  individual  persons,  citizens  of  those  States, 
as  chargeable  with  treason  as  a  legal  crime. 

Whatever  degree  of  doubt  might  have  prevailed  at  the 
outbreak  of  the  insurrection,  rebellion,  or  civil  war,  as  to 
the  duty  of  the  private  citizen,  in  the  supposed  case  that 
his  own  State  and  section  should  attempt  secession,  it  was, 
probably,  believed  universally  that,  if  the  government  of 
the  United  States  should  be  re-established  in  tlie  South, 
there  would  then  appear  some  clear  exposition  of  the  law 
of  treason  ;  applicable  in  the  future,  at  least. 

In  the  United  States  v.  Greathouse,  2  Abbott's  U.  S. 
Eep.  380,  10th  Circuit,  California,  October  T.  1863,  the 
defendant,  a  citizen  of  Kentuck}^  with  another  citizen  of 
the  same  State,  and  Avith  a  British  subject,  was  indicted 
under  the  Act  of  July  17,  1862,  12  U.  S.  Stat.  590,  for 
treason,  by  "  levying  war  against  the  United  States,  and 
giving  aid  and  comfort  to  their  enemies,"  in  having 
equipped,  in  the  port  of  San  Francisco,  and  attempted  to 
cruise  with,  a  vessel  carrying  a  letter  of  marque,  from 
Mr.  Davis,  as  President  of  the  Confederacy. 

On  the  trial  of  the  indictment  before  Judges  Field  and 
Hoffman,  Judge  Field  said  in  his  charge  to  the  jury, — 

"As  matter  of  policy  and  humanity,  the  government  of  the 
United  States  has  treated  the  citizens  of  the  so-called  Confederate 
States,  taken  in  opea  hostilities,  as  prisoners  of  war,  and  has  thus 
exempted  them  from  trial  for  violation  of  its  municipal  laws.  But 
the  courts  have  no  such  dispensing  power;  they  can  only  enforce 
the  laws  as  they  find  them  upon   the  statute  book.     They  cannot 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  61 

United  States  v.  Greathouse  :  In  the  Tentli  Circuit. 

treat  any  new  government  as  having  authority  to  issue  commissions 
or  letters  of  marque,  which  will  afford  protection  to  its  citizens, 
until  the  legislative  and  executive  departments  have  recognized  its 
existence.  The  judiciary  follows  the  political  department  of  the 
government  in  these  particulars.^  By  that  department,  the  rules  of 
war  have  been  applied  only  in  special  cases  ;  and,  notwithstanding 
the  application,  Congress  has  legislated,  in  numerous  instances,  for 
the  i)unishment  of  all  parties  engaged  in,  or  rendering  assistance  in 
any  way  to,  the  existing  rebellion.  The  law  under  which  the  de- 
fendants are  indicted  was  passed  after  captives  in  war  had  been 
treated  and  exchanged  as  prisoners  of  war  in  numerous  instances. 

"  But  even  if  full  belligerent  rights  had  been  conceded  to  the 
Confederate  States,  such  rights  could  not  be  invoked  for  the  protec- 
tion of  persons  entering  within  the  limits  of  States  which  have 
never  seceded,  and  secretly  getting  up  hostile  expeditions  against 
our  government,  and  its  authority  and  laws.  The  local  and  tem- 
porary allegiance,  which  every  one  —  citizen  or  alien  —  owes  to 
the  government  under  which  he  at  the  time  lives,  is  sufficient  to 
subject  him  to  the  penalties  of  treason." 

It  will  be  noticed  that,  in  this  instance,  there  was  no 
defendant  cliarged  with  treason  who  was  in  the  situation, 
as  a  citizen  of  one  of  the  States  of  the  Confederacy,  to 
plead  liis  relation  to  such  State  in  denial  of  liability 
under  this  indictment.  The  case  was  such  as  might  occur 
during  a  war  with  any  foreign  nation.^ 

1  This  case  would  be  important  mainly  as  it  might  indicate  some  neces- 
sary limitation  to  tliat  recognition  of  tiie  rebel  belligerency  which  was 
accorded  by  the  government  of  the  United  States,  and  how  it  differed,  in- 
trinsically, from  that  wliich  was  declared  by  tlie  British  government,  atife, 
p.  56.  But,  in  strictness,  tiiis  case  would  not  be  a  precedent,  on  the  ques- 
tion of  treason  as  raised  on  capture  of  citizens  of  any  of  the  States  of  the 
Confederacy  on  a  privateer  whicli  miglit  have  issued  from  a  port  of  the  Con- 
federacy, or  from  a  foreign  port,  under  such  a  commission. 

^  A  belligerent  being  recognized,  the  courts  are  obliged  to  determine  the 
application  of  the  customary  law  of  international  warfare.  In  Ford  v. 
Surget,  7  Otto,  97  U.  S.  504,  the  defendant,  a  citizen  of  Louisiana,  who 
liad  destroyed  the  plaintiff's  cotton  by  order  of  the  Confederate  military 
autlioritics,  was  held  exempt  from  responsibility.  Tlie  opinion  of  tlie  court, 
by  Mr.  Justice  Harlan,  and  a  separate  opinion  by  Mr.  Justice  Clifford,  con- 
curring in  the  judgment,  are  each  of  great  historical  interest,  as  giving 


62  THE   QUESTION  OF   TREASON. 

Confiscation ;  For  Enemies,  or  for  Traitors  f 

More  material  to  tlie  questions  raised  by  the  Rebellion 
is  the  following  portion  of  Judge  Field's  charge,  — 

"  The  terra  '  enemies,'  as  used  in  the  second  clause,  according  to 
its  settled  meaning  at  the  time  the  Constitution  was  adopted,  ap- 
plies only  to  the  subjects  of  a  foreign  power  in  a  state  of  open  hos- 
tility with  us.  It  does  not  embrace  rebels  in  insurrection  against 
their  own  government.  An  enemy  is  always  the  subject  of  a 
foreign  power  who  owes  no  allegiance  to  our  government  or  coun- 
try. We  may  omit,  therefore,  all  consideration  of  this  second 
clause  in  the  constitutional  definition  of  treason.  To  convict  the 
defendants  they  must  be  brought  within  the  first  clause  of  the  defi- 
nition. They  must  be  shown  to  have  committed  acts  which  amount 
to  a  levying  war  against  the  United  States." 

There  are  certain  cases  in  the  reports  which  may,  or 
may  not,  be  generally  supposed  to  show  that  the  crime  of 
treason  against  the  United  States  had  been  judicially  fixed 
upon  persons,  citizens  of  some  State  of  the  Confederacy. 
These  are  the  cases  arising  under  several  Acts  of  Congress 
passed  during  the  war  and  generally  known  as  Confisca- 
tion Acts,  which  are  mainly  that  of  August  6,  1861,  12 
U.  S.  Stat.  319,  entitled  An  Act  to  confiscate  property  used 
for  insurrectionary  purposes,  and  the  Acts  of  July  17, 
1862,  and  of  March  12,  1863,  already  named  (ante,  p.  59,) 
and  the  Act  of  July  2, 1861, 13  U.  S.  Stat.  375,  entitled,  "  An 
Act  in  addition  to  the  several  Acts  concerning  commercial  in- 
tercourse between  loyal  and  insurrectionary  States,  and  to 
provide  for  the  collection  of  captured  and  abandoned  2^^op- 
erty,  and  for  the  prevention  of  frauds  in  States  declared  in 
insurrection,^^  the  third  section  of  which  extends  the  first 

general  reviews  of  the  decisions  on  tlie  effect  of  the  state  of  war;  but  also, 
especially,  as  they  may  indicate  a  distinction,  which  is  discernible  in  many 
of  the  earlier  opinions,  in  identifying  the  party  or  person  to  whom  the  bel- 
ligerent capacity  was  attributed.  One  opinion  seems  to  find  such  part^'  in  a 
de  facto  military  organization,  while  the  other  appears  to  recognize  the  eleven 
States,  in  their  political  capacity,  as  the  belligerent. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  63 

Confiscation.     Opinion  by  Chase,  C.  J. 

section  of  the  Act  of  March  12,  1863,  to  include  the  de- 
scriptions of  property  mentioned  in  the  Act  of  July  17, 
1862.1 

The  case,  Union  Ins.  Co.  v.  United  States,  6  Wall.  759, 
arose  on  the  seizure  under  the  Act  of  1861,  of  real  estate, 
located  in  New  Orleans,  and  its  condemnation,  in  the  Dis- 
trict Court  on  proceedings  following  the  practice  in  admi- 
ralty ,2  for  having  been  leased  to  parties  who  established  on 
the  premises  a  manufactory  of  arms  for  the  rebel  govern- 
ment." 

In  the  case  of  Armstrong's  Foundry,  6  Wall.  766,  the 
property,  real  estate  in  New  Orleans,  had,  under  the  same 
statute,  been  seized  as  forfeited  to  the  United  States,  by 
reason  of  having  been  used,  under  lease  from  the  owner, 
in  aid  of  the  rebellion.  Armstrong,  as  claimant  in  the 
District  Court,  "  pleaded  the  amnesty  offered  by  President 
Lincoln,  and  his  acceptance  of  it  and  compliance  with  the 
terms."  The  plea  was  rejected,  and  a  decree  of  condemna- 
tion was  rendered.  On  the  appeal  to  the  Supreme  Court, 
Mr.  Chief  Justice  Chase  delivered  the  opinion,  and  said :  — 

"  It  was  insisted,  in  argument,  that  the  pardon  pleaded  by  the 
appellant  cannot  avail  to  relieve  him  from  the  forfeiture  of  the 
property  seized,  because  the  liability  to  seizure  arose,  under  the  stat- 
ute, from  the  mode  in  which  the  property  was  employed,  and  was 
not  to  be  regarded  as  a  penal  consequence  of  the  act  of  the  owner. 
We  are  unable  to  concur  in  this  view.     We  think  it  clear  that   the 

'  Tlie  same  section  provides,  "  that  all  property,  real  and  personal,  de- 
scribed in  the  Acts  to  which  this  is  an  addition,  shall  be  regarded  as  aban- 
doned when  the  lawful  owner  thereof  shall  be  voluntarily  absent  therefrom, 
and  engaged,  either  in  arms  or  otherwise,  in  aiding  or  encouraging  the  re- 
bellion." 

-  In  this  instance  the  case  was  remanded  by  the  Supreme  Court  to  the 
District  Court  for  a  new  trial ;  on  the  ground  that,  the  property  seized  hav- 
ing been  real  estate,  the  proceedings,  on  the  new  trial,  must  be  conformed  in 
respect  to  trial  by  jury  and  exceptions  to  evidence,  to  the  course  of  proceed- 
ing by  information,  on  the  conunon  law  side  of  the  court  in  cases  of  seizure 
upon  land.    0  Wall.  7G6 ;  also  lb.  Wd,  and  8  Wall.  508. 


64  THE   QUESTION   OF   TREASON. 

Tlie  Cotton  Cases.     Opinion  by  Chase,  C.  J. 

statute  regarded  the  consent  of  the  owner  to  the  employment  of  his 
property  in  aid  of  the  rebellion  as  an  offence,  and  inflicted  forfeit- 
ure as  a  penalty.  The  general  pardon  of  Armstrong,  therefore, 
relieved  him  of  so  much  of  the  penalty  as  accrued  to  the  United 
States."     lb.  769. 

Mr.  Justice  Miller  dissented,  without  delivering  any 
opinion. 

The  majority  of  the  cases  of  the  same  class  were  mainly 
determined  under  the  Act  of  July  17,  1862.2 

In  the  case  of  Mrs.  Alexander's  cotton,  2  Wall.  404, 
the  property  had  been  seized  in  the  spring  of  1864,  by  a 
naval  or  military  force,  at  her  plantation  residence  on  the 
Red  River,  had  been  taken  to  Cairo,  111.,  and  libelled  as 
prize  of  war  and  as  matter  of  maritime  capture.     The  de- 

1  In  a  note  to  this  case,  lb.  770,  the  same  doctrine  is  stated  to  have  gov- 
erned otlier  cases.  The  distinction  from  cases  of  maritime  capture  is  pointed 
out,  where  the  proclamation  did  not  restore  tlie  owner's  loss ;  citing  the 
"  Gray  Jacket,"  5  Wall.  342,  348. 

2  The  title  is  given  ante,  p.  59.  The  first  four  sections  provide  for  the  pun- 
ishment of  treason  against  the  United  States,  on  being  adjudged  guilty  thereof, 
by  death  or  by  fine  and  imprisonment  ;  enacting  also  that  "all  his  slaves,  if 
any,  shall  be  declared  and  made  free;"  and  for  the  punishment  of  aiding  or 
engaging  in  any  rebellion.  In  section  5  it  is  provided,  "  That,  to  insure  the 
speedy  termination  of  the  present  rebellion,  it  shall  be  the  duty  of  the  Pres- 
ident of  the  United  States  to  cause  the  seizure  of  all  the  estate  and  property, 
monej^  stocks,  credits,  and  effects  of  the  persons  hereinafter  named  in  this 
section,  and  apply  and  use  the  same  and  the  proceeds  thereof  for  the  sup- 
port of  the  army  of  the  United  States  ;  that  is  to  say."  Five  classes  of 
persons,  office-holders  of  the  Confederate  States,  are  enumerated ;  and 
sixthly,  "any  person  who,  owning  property  in  any  loyal  State  or  Terri- 
tory, or  in  the  District  of  Columbia,  sliall  hereafter  assist  and  give  aid 
and  comfort  to  such  rebellion."  Sect.  6  makes  it  the  duty  of  the  President 
to  "  seize  the  property  of  persons  who,  being  engaged  in  armed  rebellion," 
&c.  Sect.  7  provides  "  and  if  said  property  .  .  .  shall  be  found  to  have  be- 
longed to  a  person  engaged  in  the  rebellion,  or  who  has  given  aid  and  com- 
fort tliereto,  the  same  shall  be  condemned  as  enemies'  property,  and  become 
the  property  of  the  United  States."  An  analysis  of  the  statute  is  given  in 
Day  V.  Micoii,  18  Wall.  156. 

On  the  same  date,  was  passed  a  joint  resolution,  12  Stat.  U.  S.  627,  ex- 
planatory of  this  Act,  which  contains  this  clause :  "  Nor  shall  any  punish- 
ment or  proceedings  under  said  Act  be  so  construed  as  to  work  a  forfeiture 
of  the  real  estate  of  the  offender  beyond  his  natural  life." 


THEORY  OF   OUTl   NATIONAL  EXISTENCE.  65 

Mrs.  Alexander's  cotton.     Opinion  by  Chase,  C.  J. 

cree  of  the  District  Court  restored  the  property  on  her 
chiim.  In  the  Supreme  Court  the  United  States  Attorney, 
on  behalf  of  the  captors,  asked  for  the  reversal  of  this  de- 
cree and  for  the  condemnation  of  the  property  as  maritime 
prize.  lb.  418.  The  court  reversed  the  decree  of  the 
District  Court  which  had  restored  the  property  ;  but  it 
denied  the  claim  for  prize,  and  directed  the  proceeds  of 
the  cotton  to  be  paid  into  the  national  treasury,  under  the 
provisions  of  the  Act  of  Congress.^ 

The  opinion  of  the  court,  unanimous,  it  seems,  was  de- 
livered by  Mr.  Chief  Justice  Chase.     In  this  it  is  said :  — 

"  This  court  cannot  inquire  into  the  personal  character  and 
dispositions  of  individual  inhabitants  of  enemies'  territory.  "We 
must  be  governed  by  the  principle  of  public  law,  so  often 
announced  from  this  bench  as  applicable  alike  to  civil  and  inter- 
national wars,  that  all  the  people  of  each  State  or  district  in  insur- 
rection against  the  United  States,  must  be  regarded  as  enemies 
until  by  action  of  the  legislature  and  the  executive,^  or  other- 
wise, that  relation  is  thoroughly  and  permanently  clianged.  .  .  . 
Being  enemies'  pi'operty,  the  cotton  was  liable  to  capture  and  con- 
fiscation by  the  adverse  party.^  It  is  true,  this  rule,  as  to  property 
on  land,  has  received  very  important  qualifications,  from  usage,  from 
the  reasonings  of  enlightened  publicists,  and  from  judicial  decisions. 
It  may  now  be  regarded  as  substantially  restricted  to  '  special  cases 

1  In  the  opinion  of  the  court,  this  Is  spoken  of  as  a  statute  favorable  to 
the  enemies  who  come  within  its  scope,  the  decree  being  "  in  order  that  the 
claimant,  when  the  rebellion  is  suppressed,  or  she  has  been  able  to  leave  the 
rebel  regions,  may  have  the  opportunity  to  bring  her  suit  in  the  Court  of 
Claims,  and,  on  making  the  proof  required  by  the  Act,  have  the  proper  de- 
cree." (lb.  p.  42.3.)  See  also  United  States  i;.  Padelford,  9  Wall.  543,  and 
United  States  v.  Klein,  13  Wall.  136  ;  Haycrofty.  The  United  States,  22  Wall. 
81 ;  the  opinions  also  by  Chase,  C.  J.,  in  whicli  the  government  is  supposed  to 
be  made  a  trustee  :  so  that  when  the  owner  whose  property  has  been  seized  as 
alien  enemy's  should  prove  that  he  was  7iot  a  traitor,  or  had  been  amnestied  as 
rebel,  its  proceeds,  deducting  expenses,  should  be  returned  to  him.  In 
United  States  v.  Klein,  Miller  and  Bradley,  JJ.,  dissented  on  this.     See  post- 

2  That  is,  apparently,  of  what  in  other  cases  is  denominated  "  the  political 
department  "  of  the  government.     See  ante,  p.  19,  and  note. 

3  Citing  Prize  Cases,  2  Black,  687. 


66  THE   QUESTION   OF   TREASON. 

Mrs.  Alexander's  cotton.     Opinion  by  Chase,  C.  J. 

dictated  by  the  necessary  operation  of  war,'  ^  and  as  excluding,  in 
general,  'the  seizure  of  the  private* property  of  pacific  persons  for 
the  sake  of  gain.'  ^  The  commanding  general  may  determine  in 
what  special  cases  its  more  stringent  application  is  required 
by  military  emergencies ;  while  considerations  of  public  policy  and 
positive  provisions  of  law,  and  the  general  spirit  of  legislation,  must 
indicate  the  cases  in  which  its  application  may  be  properly  denied 
to  the  property  of  non-combatant  enemies. 

"  In  the  case  before  us,  the  capture  seems  to  have  been  justified 
by  the  peculiar  character  of  the  property  and  by  legislation.  It  is 
well  known  that  cotton  has  constituted  the  chief  reliance  of  the 
rebels  for  means  to  purchase  the  munitions  of  war  in  Europe.  .  .  . 
Rather  than  permit  it  to  come  into  the  possession  of  the  national 
troops,  the  rebel  government  has  everywhere  devoted  it,  however 
owned,  to  destruction.^  .  .  .  The  rebels  regard  it  as  one  of  their  main 
sinews  of  war;  and  no  principle  of  equity  or  just  policy  required, 
when  the  national  occupation  was  itself  precarious,  that  it  should 
be  spared  from  capture  and  allowed  to  remain,  in  case  of  the  with- 
drawal of  the  Union  troops,  an  element  of  strength  to  the  rebellion. 

"  And  the  capture  was  justified  by  legislation  as  well  as  by  pub- 
lic policy.  The  act  of  Congress  to  confiscate  property  used  for  in- 
surrectionary purposes,  approved  August  6,  1861,  declares  all  prop- 
erty employed  in  aid  of  the  rebellion  with  consent  of  the  owners,  to 
be  lawful  subject  of  prize  and  capture  wherever  found.  (12  Stat. 
U.  S.  319.)  And  it  further  provided  by  the  act  to  suppress  insur- 
rection, and  for  other  p-urposes,  approved  July  17,  1862  (Id.  591), 
that  the  jiroperty  of  persons  who  had  aided  the  rebellion  and  should 
not  return  to  allegiance  after  the  President's  warning,  should  be 
seized  and  confiscated.  It  is  in  evidence  that  Mrs.  Alexander  was 
a  rebel  enemy  at  the  time  of  the  enactment  of  this  act.  .  .  .  Mrs. 
Alexander,  being  now  a  resident  in  enemy  territory  and,  in  law,  an 
enemy,  can  have  no  standing  in  any  court  of  the  United  States,  so 
long  as  that  relation  shall  exist.*  Whatever  might  have  been  the 
effect  of  the  amnesty  had  she  removed  to  a  loyal  State  after  taking 

1  Cites  1  Kent,  92.  2  cites  Id.  93. 

8  See  Ford  v.  Surget,  7  Otto,  505,  609;  ante,  p.  Gl,  note. 

*  In  2  Hriglitly's  Digest  (1869),  276,  note  to  Insurrection,  "The  inhab- 
itants of  States  in  rebellion  against  the  government  are  to  be  considered  alien 
enemies,  and  as  such  disqualified  from  suing  in  the  courts  of  the  loyal  States. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  67 

Captured  and  Abandoned  Property. 

the  oath,  it  can  have  none  on  her  relation  as  enemy  voluntarily  re- 
sumed by  continued  residence  and  interest."     (lb.  421.) 

The  same  views  were  reaffirmed  by  Chief  Justice  Chase 
in  opinions  delivered  for  the  court,  in  United  States  v. 
Padelford,  9  Wall.  531,  and  United  States  v.  Klein,  13 
Wall.  128,  w'liere  the  disposition  of  the  property  seized,  as 
between  the  United  States  Treasury  and  the  former  owner 
Avas  considered  under  the  Act  of  12  March,  1863,  "  The 
Captured  and  Abandoned  Property  "  Act. 

In  United  States  v.  Anderson,  9  Wall.  56,  the  unani- 
mous opinion  of  the  court  was  delivered  by  Mr.  Justice 
Davis,  who  gave  this  view  of  the  nature  of  that  statute  :  ^  — 

"  During  the  progress  of  the  war,  it  was  expected  that  our  forces 
in  the  field  would  capture  property,  and  as  the  enemy  retreated, 
that  property  would  remain  in  the  country  without  apparent  own- 
ership, which  should  be  collected  and  disposed  of.  In  this  condi- 
tion of  things,  Congress  acted.  While  providing  for  the  disposition 
of  this  captured  and  abandoned  property,  Congress  recognized  the 
status  of  the  loyal  Southern  people,  and  distinguished  between  prop- 

Bouneau  v.  Dinsmore,  24  Law  Rep.  381.  Nor  can  they  appear  as  claimants 
in  a  case  of  prize.  United  States  v.  The  Isaac  Hammett,  4  West.  L.  Mo. 
486 ;  s.  c.  10  Pitts.  L.  J.  97  ;  United  States  v.  The  Allegheny,  lb.  276  ;  United 
States  V.  100  Barrels,  &c.,  Law  R.  735." 

1  In  the  first  section  of  this  act  provision  was  made  for  "  agents  to  receive 
and  collect  all  abandoned  or  captured  property  in  any  State  or  territory,  or 
any  portion  of  any  State  or  territory  of  the  United  States  designated  as  in 
insurrection  against  the  lawful  government  of  the  United  States  by  the 
proclamation  of  tlie  President  of  July  1,  1862.  Provided,  that  such  prop- 
erty shall  not  include  any  kind  or  description  which  has  been  used,  or  which 
was  intended  to  be  used,  for  waging  or  carrying  on  war  against  the  United 
States,  such  as  arms,  ordnance,  ships,  steamboats,  or  other  water  craft,  and 
the  furniture,  forage,  military  supplies,  or  munitions  of  war."  In  the  third 
section,  that  "  any  person  claiming  to  have  been  the  owner  of  any  such 
abandoned  or  captured  property,  may  at  anytime  within  two  years  after  the 
suppression  of  the  rebellion,  prefer  his  claim  to  the  proceeds  thereof  in  the 
Court  of  Claims,  and  on  proof  to  the  satisfaction  of  the  Court  of  his  owner- 
ship of  said  property,  of  his  right  to  the  proceeds  thereof,  and  that  he  haa 
never  given  any  aid  or  comfort  to  the  present  rebellion,  to  receive  the  resi- 
due of  said  proceeds,  after  deduction,"  &c. 


68  THE   QUESTION   OF   TREASON. 

McVeigh  v.  United  States.     Opinion  by  Swayne,  J. 

erty  owned  by  them  and  property  of  the  disloyal.  It  was  not  re- 
quired to  do  this,  for  all  the  property  obtained  in  this  manner  could, 
by  proper  proceedings,  have  been  appropriated  to  the  necessities  of 
the  war.  But  Congress  did  not  think  proper  to  do  this.  In  a 
spirit  of  liberality,  it  constituted  the  government  a  trustee  for  so 
much  of  this  property  as  belonged  to  the  faithful.  Southern  peo- 
ple," &c. 

The  earlier  position,  taken  in  Mrs.  Alexander's  cotton, 
as  to  the  inability  of  the  owner  to  appear  and  defend  was 
abandoned  in  later  cases.^ 

In  McVeigh  v.  United  States,  11  Wall.  259,  the  plain- 
tiff, who  had  held  civil  and  military  offices  under  the  Con 
federacy,  and,  apparently,  taken  no  action  on  the  President's 
proclamation,  appeared  by  counsel,  and  made  a  claim  to 
property  which  had  been  libelled,  and  filed  an  answer.  In 
the  District  Court,  on  motion,  the  claim,  answer,  and  ap- 
pearance were  stricken  from  the  files ;  the  default  of  all 
persons  was  taken,  and  a  decree  was  rendered  for  the  con- 
demnation and  sale  of  the  property.  This  decree  was 
affirmed  in  the  Circuit  Court,  from  which  it  was  brought 
before  the  Supreme  Court,  on  writ  of  error.  Id.  261.  The 
court  reversed  the  judgment  of  the  District  Court,  an4  the 
cause  was  "  remanded  to  the  Circuit  Court,  with  directions 
to  proceed  in  it  in  conformity  to  law." 

Mr.  Justice  Swayne,  delivering  the  unanimous  opinion 
of  the  court,  said  :  — 

1  On  p.  256,  11  Wall,  the  reporter  notes  that  the  four  cases  there  follow- 
ing;  viz.,  Garnet  v.  United  States,  McVeigh  v.  Same,  Miller  r.  Same, 
and  Tyler  v.  Defrees,  arose  under  the  two  acts  of  1801,  18()2,  "popularly 
known  as  the  Confiscation  Acts.  Along  with  one  or  two  others,  they  were 
argued  at  tlie  last  term  ;  but,  after  being  taken  into  advisement,  were,  at  the 
close  of  it,  ordered  to  be  reargued  at  this.  They  were  now  fully  argued 
very  much  together.  In  tlie  first  of  them  nothing  relating  to  confiscation 
was  reached  ;  the  case  going  off  on  a  point  of  jurisdiction.  In  tlie  judg- 
ment of  none  of  them  did  the  Chief  Justice  [Chase]  or  Mr.  Justice  Nelsou 
participate." 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  69 

Miller  o.  United  States. 

"  It  is  objected  that  McVeigh  was  iucompetent  to  sue  out  this 
writ  of  error.  His  alleged  criminality  lies  at  the  foundation  of  the 
proceeding.  It  was  averred  iu  the  libel  that  he  was  the  owner  of 
the  property  described,  and  that  he  was  guilty  of  the  offences 
charged,  which  rendered  it  liable  to  forfeiture.  The  questions  of 
his  guilt  and  ownership  were  therefore  fundamental  in  the  case.  .  . 
The  case  is  wholly  unlike  a  proceeding  jiurely  in  rem.  .  .  .  The 
order,  iu  effect,  denied  the  respondent  a  hearing.  It  is  alleged  that 
he  was  in  the  position  of  an  alien  enemy,  and  hence  could  have  no 
locus  standi  in  that  forum.  If  assailed  there,  he  could  defend  there. 
The  liability  and  the  right  are  inseparable.  A  different  result  would 
be  a  blot  upon  our  jurisprudence  and  civilization.  We  cannot  hesi- 
tate or  doubt  on  the  subject.  It  would  be  contrary  to  the  first 
principles  of  the  social  compact  and  of  the  right  administration  of 
justice.^ 

"  "Whether  the  legal  status  of  the  plaintiff  in  error  was,  or  was 
not,  that  of  an  alien  enemy,  is  a  point  not  necessary  to  be  consid- 
ered ;  because,  apart  from  the  views  we  have  expressed,  conceding 
the  fact  to  be  so,  the  consequences  assumed  would  by  no  means 
follow."     lb.  267. 

The  case  which  follows  in  the  volume,  Miller  v.  United 
States,  11  Wall.  268,  is  the  leading  case  on  this  aspect  of 
the  subject.  The  plaintiff  in  error,  in  this  case,  likewise, 
was  an  official  in  the  civil  and  military  service  of  the  Con- 
federates. His  competency  to  sue  out  the  writ  was  main- 
tained on  the  principle  of  the  last  case.  lb.  293.  In  this 
case  the  decree  of  the  District  Court,  confiscating  certain 
stock  held  by  the  plaintiff  in  railways  located  in  the 
Northern  States,  was  affirmed  by  a  majority  of  the  court 

1  This  Tery  decided  language,  from  a  unanimous  opinion  of  the  court, 
was  cited  by  Mr.  Justice  Field  when  delivering  the  opinion  of  the  court  in 
the  later  case  of  Windsor  v.  MacVeigh,  3  Otto,  93  U.  S.  277,  in  which  in- 
stance a  majority  of  the  justices  again  declared  the  invalidity  of  a  con- 
demnation of  property  as  by  default,  after  the  claimant's  appearance  and 
answer  had  been  stricken  out  in  the  District  Court,  on  proceedings  instituted 
under  the  Act  of  July  17,  1862.  But  in  this  case  Justices  Miller,  Bradley, 
and  Hunt  dissented.    lb.  284. 


70  THE   QUESTION   OF   TREASON. 

Millet  V.  United  States.     Opinion  by  Strong,  J. 

in  a  very  full  opinion  by  Mr.  Justice  Strong ;  in  which  it 
was  said,  lb,  304  :  — 

"  It  remains  to  consider  the  objection  urged  on  behalf  of  the 
plaintiff  in  error,  that  the  acts  of  Congress,  under  ■which  these  jjro- 
ceedings  to  confiscate  the  stock  have  been  taken,  are  not  warranted 
by  the  Constitution,  and  that  they  are  in  conflict  with  some  of  its 
provisions.  The  objection  starts  with  the  assumption,  that  the 
purpose  of  the  acts  was  to  punish  offences  against  the  sovereignty 
of  the  United  States,  and  that  they  are  merely  statutes  against 
crimes.  If  this  were  a  correct  assumption  ;  if  the  act  of  1861,  and 
the  5th,  6th,  and  7th  sections' of  the  act  of  July  17,  1862,  were 
municipal  regulations  only,  there  would  be  force  in  the  objection 
that  Congress  has  disregarded  the  restrictions  of  the  5th  and  6th 
amendments  of  the  Constitution.  Those  restrictions,  so  far  as 
material  to  the  argument,  are,  that  no  person  shall  be  held  to 
answer  for  a  capital,  or  otherwise  infamous  crime,  unless  on  pre- 
sentment or  indictment  of  a  grand  jury ;  that  no  person  shall  be 
deprived  of  his  property  without  due  process  of  law,  and  that  in  all 
criminal  prosecutions  the  accused  shall  enjoy  the  right  to  a  speedy 
and  public  trial  by  an  impartial  jury  of  the  State  and  district 
wherein  the  crime  shall  have  been  committed.  But  if  the  assump- 
tion of  the  plaintiff  in  error  is  not  well  made ;  if  the  statutes  were 
not  enacted  under  the  municipal  power  of  Congress  to  legislate  for 
the  punishment  of  crimes  against  the  sovereignty  of  the  United 
States ;  if,  on  the  contrary,  they  are  an  exercise  of  the  war  powers 
of  the  government,  —  it  is  clear  they  are  not  affected  by  the  restric- 
tions imposed  by  the  5th  and  6th  amendments.  This  we  under- 
stand to  have  been  conceded  on  the  ai'gument.  The  question, 
therefore,  is,  whether  the  action  of  Congress  was  a  legitimate 
exercise  of  the  war  power."  lb.  305. 

The  opinion  proceeds  to  set  forth  the  doctrines,  or 
usage,  of  international  warfare,  as  being  completely  appli- 
cable in  the  circumstances  of  this  case.  Afterwards  it  is 
said  :  — 

"It  is  hardly  contended  that  the  act  of  1861  was  enacted  in 
virtue  of  the  sovereign  rights  of  the  government.  It  defined  no  crime  ; 
it  imposed  no  penalty.  It  declared  nothing  unlawful.  It  was  aimed 
exclusively  at   the  seizure  and  confiscation  of  property  used,  or 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  71 

Miller  v.  United  States.    Dissenting  Opinions. 

intended  to  be  used,  to  aid,  abet,  or  promote  the  rebellion,  then  a 
war,  or  to  maintain  the  war  against  the  government.  It  cannot 
be  maintained  tliat  there  is  uo  power  to  seize  property  actually 
employed  in  furthering  a  war  against  the  government,  or  intended 
to  be  thus  employed.  It  is  the  act  of  1862,  the  constitutionality  of 
which  has  been  principally  assailed."    lb.  308. 

Mr.  Justice  Strong  proceeds  to  justify  the  purpose  of 
"  seizing  and  confiscating  the  property  of  rebels,"  as  pro- 
vided in  the  5th  and  following  sections,  on  the  ground  of 
their  being  public  enemies :  — 

*'  The  provisions  made  to  carry  out  the  purpose,  viz.,  confisca- 
tion, were  legitimate  unless  applied  to  others  than  enemies.  It  is 
argued,  however,  that  the  enactments  were  for  the  confiscation  of 
property  of  rebels,  designated  as  such,  and  that  the  law  of  nations 
allows  confiscation  only  of  enemy's  property.  But  the  argument 
overlooks  the  fact  that  the  rebellion  then  existing  was  a  war. 
And,  if  so,  those  engaged  in  it  were  public  enemies.  The  statute 
referred  to  the  rebellion  then  in  progress.  Whatever  may  be  true 
in  regard  to  a  rebellion  which  does  not  rise  to  the  magnitude  of  a 
war,  it  must  be  that  when  it  has  become  a  recognized  war  those 
who  are  engaged  in  it  are  to  be  regarded  as  enemies.  And  they 
are  not  the  less  such  because  they  are  also  rebels.  They  are  equally 
well  designated  as  rebels  or  enemies.  Regarded  as  descriptio  per- 
sonarum,  the  words  '  rebels'  and  'enemies,'  in  such  a  state  of  things, 
are  synonymous."     lb.  309. 

In  this  case  three  justices  dissented  from  the  judgment 
of  the  court ;  Mr.  Justice  Davis,  only  on  the  disposition 
of  the  case,  though  concurring  in  maintaining  the  con- 
stitutionality of  the  Acts  of  Congress.   lb.  328. 

Justices  Field  and  Clifford  dissented  in  an  opinion  de- 
livered by  the  former,  holding, — 

"  It  would  seem  clear,  therefore,  that  the  provisions  of  the  Act 
were  not  passed  in  the  exercise  of  the  war  powers  of  the  govern- 
ment, but  in  the  exercise  of  the  municipal  power  of  the  government 
to  legislate  for  the  punishment  of  offences  against  the  United 
States.     It  is  the  property  of  persons  guilty  of  certain  acts,  wher- 


72  THE   QUESTION   OF   TREASON. 

Tyler  v.  Defrees.     Opinion  by  Miller,  J. 

ever  they  may  reside,  iu  loyal  or  disloyal  States,  which  the  statute 
directs  to  be  seized  and  confiscated."   lb.  319. 

The  dissenting  Justice  proceeds  to  argue  the  intention  of 
the  legislature  from  the  history  of  the  bill,  it  being  known 
that  it  was  modified  in  its  passage,  in  view  of  constitu- 
tional objections  insisted  on  by  President  Lincoln,  lb.  320  ; 
and  in  view  of  the  constitutionality  of  such  legislature, 
says : — 

"  It  seems  to  me,  that  the  reasoning  which  upholds  the  proceed- 
ings in  this  case  works  a  complete  revolution  in  our  criminal  juris- 
prudence, and  establishes  the  doctrine  that  proceedings  for  the 
punishment  of  crime  against  the  persun  of  the  offender  may  be 
disregarded,  and  proceedings  for  such  punishment  may  be  taken 
against  his  jiroperty  alone,  or  that  proceedings  may  be  taken  at  the 
same  time  both  against  the  person  and  the  property,  and  thus  a 
double  punishment  for  the  same  offence  be  inflicted. 

"  For  these  reasons,  I  am  of  opinion  that  the  legislation  upon 
which  it  is  sought  to  uphold  the  judgment  in  this  case  is  not  war- 
ranted by  the  Constitution."    lb.  323. 

In  the  case  of  Tyler  v.  Defrees,  which  follows  in  11 
Wall.  p.  331,  the  majority  reaffirm  the  doctrine  of  the  last 
case ;  while  the  same  justices  repeat  their  dissent  on  the 
constitutional  question.  The  property  confiscated  was 
real  estate  in  the  District  of  Columbia.  In  this  case  the 
opinion  of  the  court  was  delivered  by  Mr.  Justice  Miller, 
from  which  a  few  passages  may  well  be  given,  as  further 
illustrating  the  nature  of  the  power  attributed  to  Congress, 
and  also  the  view  taken  of  the  parties  belligerent. 

"  Undoubtedly,  by  the  individual  whose  property  is  thus  seized 
and  condemned  for  acts  of  hostility  to  his  government,  the  course 
pursued  would  be  scrutinized  with  an  eye  quick  to  detect  errors, 
and  it  is  not  strange  that  this  critical  spirit  should  affect  the  ar- 
gument here.  When  to  this  is  added  the  belief,  long  inculcated, 
that  the  Federal  government,  however  strong  in  conflict  with  a 
foreign  foe,  lies  manacled  by  the  Constitution,  and  helpless  at  the 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  73 

Tyler  v.  Defrees.     Field  and  Clifford,  JJ.,  dissent. 

feet  of  a  domestic  enemy,  we  need  not  be  surprised  that  both  the 
power  of  Congress  to  pass  such  a  law  as  the  one  in  question,  and 
the  capacities  of  the  courts  to  enforce  it,  should  meet  with  a  stout 
denial. 

"  But  we  do  not  believe  that  the  Congress  of  the  United  States, 
to  which  is  confided  all  the  great  powers  essential  to  a  perpetual 
union  —  the  power  to  make  war,  to  suppress  insurrection,  to  levy 
taxes,  to  make  rules  concerning  captures  on  land  and  on  sea  —  is 
deprived  of  these  powers  when  the  necessity  for  their  exercise  is 
called  for  by  domestic  insurrection  and  internal  civil  war  —  when 
States,  forgetting  their  constitutional  obligations,  make  war  against 
the  nation,  and  confederate  together  for  its  destruction."  .  .  . 

"As  the  act  was  designed  to  introduce  the  principle  of  confis- 
cating enemy  property  seized  on  land,  like  that  seized  on  water, 
applying  the  confiscation,  however,  to  the  property  of  a  limited 
class  of  enemies,  instead  of  to  all  enemies,  it  was  conceived  that  the 
proceeding  should  be,  in  its  essential  features,  analogous  to  those 
which  the  courts  of  admiralty  were  accustomed  to  use  in  property 
captured  at  sea,"  &c.    lb.  345. 

Mr.  Justice  Davis  concurred  in  the  judgment,  though 
"  not  able  to  concur  in  all  that  was  said  by  the  court  in 
preceding  opinion."  Mr.  Justice  Field  again  expressed 
his  dissent,  in  an  opinion  in  which  Mr.  Justice  Clifford  con- 
curred. Much  of  the  discussion  in  this  case  was  founded 
upon  the  question  of  procedure  under  the  act.  The 
validity  of  the  statute  having  been  mainly  argued  in  Miller 
V.  The  United  States.  But  on  this  point  it  is  further  said 
here  by  Mr.  Justice  Field,  referring  to  that  case,  lb.  354  :  — 

"  In  that  dissenting  opinion  I  expressly  stated  that  it  had  been 
held  that,  when  the  late  rebellion  assumed  the  proportions  of  a 
territorial  civil  war,  the  inhabitants  of  the  Confederate  States  and 
the  inhabitants  of  the  loyal  States  became  reciprocally  enemies  to 
each  other,  and  that  the  inhabitants  of  the  Confederate  States  en- 
gaged in  the  rebellion,  or  giving  aid  and  comfort  thereto,  were  at 
the  same  time  amenable  to  the  municipal  law  as  rebels,  and  that 
the  correctness  of  this  determination  was  not  disputed;  that  the 
question  was  not  as  to  the  right  of  Congress  to  adopt  either  of  these 


74  THE   QUESTION   OP   TREASON. 

Tj'ler  V.  Defrees.     Field,  J.,  Dissenting  Opinion. 

courses,  but  what  course  had  Congress,  by  its  legislation,  authorized. 
It  is  indisputable,  that  whatever  Congress  may  authorize  to  be 
done,  by  the  law  of  nations,  in  the  prosecution  of  war  against  an 
independent  nation,  it  may  authorize  to  be  done  when  engaged  in 
the  prosecution  of  a  teri'itorial  civil  war  against  the  domestic  ene- 
mies of  the  United  States.  I  contend  only  that  the  limitations 
which  the  law  of  nations  has  imposed  in  the  conduct  of  war  be- 
tween independent  nations,  should  apply  to  and  govern  the  United 
States  in  whatever  war  they  may  prosecute.  I  do  not  doubt,  and 
never  have  doubted,  for  a  moment,  that  the  United  States  possess 
all  the  power  necessary  to  suppress  all  insitrrectious,  however 
formidable,  and  to  make  their  authority  respected  and  obeyed 
throughout  the  limits  of  the  republic.  But  this  recognition  of  the 
power  of  the  government  cannot  be  permitted  to  preclude  a  com- 
parison of  all  legislation,  adopted  to  uphold  its  authority,  with  the 
Constitution.  And  in  so  comparing  the  Act  of  July  17,  1862,  I 
am  unable  to  find  in  that  great  instrument  any  sanction  for  the 
clauses  in  the  act  providing  for  the  seizure  and  confiscation  of  the 
property  of  persons  charged  with  particular  criminal  acts.  I  do  not 
find  it  in  the  war  powers  of  the  government,  for  they  sanction  only 
the  confiscation  of  the  property  of  public  enemies.  I  do  not  find  it 
in  the  municipal  power  of  the  government  to  legislate  for  the 
punishment  of  crimes ;  ^  for  that  is  subject  to  limitations,  which 
secure  to  the  accused  a  trial  by  jury  of  his  peers,  and  the  right  to 
be  confronted  with  the  witnesses  against  him. 

"  It  is  true,  as  already  stated,  that  enemies  participating  in  the 
rebellion,  or  giving  aid  and  comfort  thereto,  might  have  been 
treated  as  rebels  and  held  amenable  to  the  municipal  law.  Yet  the 
terms  '  enemies  '  and  '  rebels  '  are  not  synonymous,  even  though  the 
rebellion  assumed  the  proportion  of  a  territorial  civil  war.  A 
permanent  resident  of  the  Confederacy  was  an  enemy,  although  he 
may  always  have  opposed  the  rebellion  and  remained  loyal  in  his 
feelings  and  action  to  the  national  government.  His  position  as  an 
enemy  was  determined  by  his   residence,  and   had  nothing  to  do 

1  The  bewildered  Justice  might  well  adapt  for  his  learned  associates  the 
wondering  wail  of  the  Pinafore  chorus  :  — 

"  However  could  you  do  it  1 

Some  day,  no  doubt,  you'll  rue  it ! 
You  mixed  those  children  up, 
And  not  a  creature  knew  it!  " 


THEORY   OF   OUR  NATIONAL  EXISTENCE.  75 

United  States  v.  Klein. 

with  his  personal  disposition  or  conduct.  But  he  was  not  a  rebel, 
and  could  not  have  been  prosecuted  as  such,  unless  he  was  per- 
sonally guilty  of  treasonable  acts. 

"  Congress  well  understood  the  distinction  between  enemies  and 
rebels,  and  we  are  not  justified  in  supposing  that  it  intended  to 
disregard  this  distinction  in  its  legislation,  even  were  that  prac- 
ticable, as  it  is  not?" 

In  United  States  v.  Klein,  13  Wall.  128,  Chief  Justice 
Chase  says  of  this  legislation  :  — 

*'  No  titles  were  divested  in  the  insurgent  States,  unless  in  pur- 
suance of  a  judgment  rendered  after  due  legal  proceedings.  The 
government  recognized,  to  the  fullest  extent,  the  humane  maxims  of 
the  modern  law  of  nations,  ^  which  exempt  private  property  of  non- 
combatant  enemies  from  capture  as  booty  of  war.  Even  the 
law  of  confiscation  was  sparingly  applied.  The  cases  were  few 
indeed  in  which  the  property  of  any,  not  engaged  in  actual  hos- 
tilities, was  subjected  to  seizure  and  sale. 

"  The  spirit  which  animated  the  government  received  special 
illustration  from  the  act  under  which  the  present  case  arose.  We 
have  called  the  property  taken  into  the  custody  of  public  officers 
under  that  act  a  peculiar  species,  and  it  was  so.  There  is,  so  far  as 
we  are  aware,  no  similar  legislation  mentioned  in  history." 

In  this  important  case,  the  question  arose  under  a  proviso 
introduced  into  a  bill  making  appropriations  for  the  pay- 
ment of  judgments  of  the  Court  of  Claims,  which  became  a 
law  July  12,  1870  (16  U.  S.  Stat.  235),  to  prevent  that 
court,  and  the  Supreme  Court  on  appeal,  from  giving  that 
effect  to  a  pardon  by  the  President  which  had  been  sus- 
tained by  the  latter  court  in  the  then  recent  case,  United 
States  V.  Padelford  (Ap.  30,  1870),  9  Wall.  531. 

All  the  members  of  the  court  agreed  in  denying  the 
validity  of  this  legislation.^     But  Mr.  Justice  Miller,  with 

1  Tliis  doctrine  tliat  tlie  act  was  in  mitigation  of  the  severity  of  the  bellig- 
erent right  is  much  insisted  on  by  Waite,  Ch.  J.,  in  Lamar  v.  Browne,  2 
Otto,  194,  195. 

'^  Opinion  of  the  court.  lb.  148.  "Now  it  is  clear  that  the  legislature 
cannot  change  the  effect  of  such  a  pardon  any  more  than  the  executive  can 


76  THE   QUESTION   OF  TREASON. 

Latest  Confiscation  Cases. 

whom  Mr.  Justice  Bradley  concurred,  delivered  a  dissenting 
opinion,  relying  on  tlie  position  supposed  to  have  been 
taken  in  United  States  v.  Anderson,  coite,  p.  67,  as  uphold- 
ing the  idea  of  confiscation  as  punishment ;  at  least  to  the 
extent  of  giving  a  stringent  construction  to  the  provisions 
for  restoration  of  property  in  the  case  of  rebels  claiming  the 
benefit  of  amnesty.     lb.  149. 

In  Armstrong  v.  United  States,  and  Pargoud  v.  United 
States,  lb.  154,  156,  Chief  Justice  Chase  delivered  the 
opinions  of  the  court,  without  dissent,  to  the  effect  that 
the  President's  proclamation  of  Dec.  25,  1868,  granting 
pardon  and  amnesty  unconditionally,  and  without  reserva- 
tion, to  all  who  participated,  directly  or  indirectly,  in  the 
late  rebellion,  relieves  claimants  of  captured  and  abandoned 
property  from  making  proof,  as  was  required  by  the  act, 
that  the  claimant  never  gave  aid  or  comfort  to  the  rebellion. 
It  is  unnecessary  to  prove  adhesion  to  the  United  States, 
or  personal  pardon  for  taking  part  in  the  rebellion. 

In  a  number  of  cases,  which,  together,  are  named  The 
Confiscation  Cases,  20  Wall.  92,  the  questions  presented 
related  principally  to  matter  of  procedure.  The  doctrine 
that  the  proceedings  are  in  ron,  and  "  in  no  sense  criminal 
proceedings,  and  they  are  not  governed  by  the  rules 
that  prevail  in  respect  to  indictments  or  criminal  informa- 
tions," is  repeated  by  Mr.  Justice  Strong,  lb.  104,  and  the 
doctrine  of  Miller  v.  United  States  re-affirmed  ;  Justices 
Field  and  Clifford  adhering  to  their  dissenting  opinions  in 
that  case.     lb.  113. 

change  a  law.  Yet  this  is  attempted  by  the  provision  under  consideration. 
The  court  is  required  to  receive  special  pardons  as  evidence  of  guilt,  and  to 
treat  them  as  null  and  void.  It  is  required  to  disregard  pardons  granted  by 
proclamation  on  condition,  though  the  condition  has  been  fulfilled,  and  to 
deny  them  their  legal  effect.  This  certainly  impairs  the  executive  authority, 
and  directs  the  court  to  be  instrumental  to  that  end.  .  .  .  We  repeat  that  it 
is  impossible  to  believe  that  this  provision  was  not  inserted  in  the  appropria- 
tion bill  through  inadvertence."  In  dissenting  opinion  :  "  is  unconstitutional, 
so  far  as  it  attempts  to  prescribe  to  the  judiciary  the  effect  to  be  given  to 
an  act  of  pardon  or  amnesty  by  the  President." 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  .  77 

Latest  Doctrine  on  Confiscation  Acts. 

In  Haycroft  v.  United  States,  22  Wall.  81,  the  opinion 
of  the  court  delivered  by  Chief  Justice  Chase  is  made  up 
largely  of  quotations  from  his  earlier  opinions,  in  United 
States  V.  Padelford,  and  United  States  v.  Klein,  resting  on 
the  position  that  the  Act  of  Congress  in  question  was  en- 
tirely founded  on  belligerent  rights.  The  very  term  co7ifis- 
cation  is  repudiated :  — 

"  There  is  here  no  question  of  confiscation.  The  title  of  the 
United  States,  whatever  may  be  the  rights  it  carries  with  it,  is  by 
authorized  capture  or  appropriation  of  enemy's  property  on  land. 
But  the  same  statute  which  authorized  the  capture  gave  a  right  to 
certain  persons  to  demand  and  receive  restoration  of  their  property 
taken." 

In  Lamar  v.  Browne,  2  Otto,  187,  and  in  Young  v.  United 
States,^  7  Otto,  58,  the  judicial  discrimination  of  cotton^  as 
property  particularly  marked  out  for  seizure  under  bellig- 
erent right,  was  very  fully  reasserted  by  the  court  in 
opinions  delivered  by  Mr.  Chief  Justice  Waite,  saying  :  — 

"  If  they  had  had  no  cotton,  they  would  not  have  had,  after  the  first 
year  or  two,  the  means  to  support  the  war.  To  a  very  large  extent, 
it  furnished  the  munitions  of  war  and  kept  the  forces  in  the  field. 
It  was,  therefore,  hostile  property,  aitd  legitimately  the  subject  of 
capture  on  the  territory  of  the  enemy."     2  Otto,  194.^ 

1  In  this  case,  the  question  presented  on  a  claim  for  restitution  for 
cotton  seized,  wliicli  liad  belonged  to  a  non-resident  alien  who  was  known 
to  have  aided  the  rebellion,  commercially,  had  the  aspect  of  a  case  arising 
under  private  international  law,  in  which  connection  it  may  be  noticed  fur- 
ther on. 

2  In  this  opinion  it  is  stated  :  "  As  late  as  September  27, 1865,  the  govern- 
ment had  not  given  up  its  claim  of  title  to  cotton  belonging  to  exporting  and 
importing  companies,  for,  on  that  day,  the  Secretary  of  the  Treasury  issued 
a  circular  letter  to  the  government  agents,  directing  them  to  take  charge  of 
all  such  cotton,  and  treat  it  as  property  which  was  used  to  aid  the  rebellion, 
and,  therefore,  belonging  to  the  United  States.  The  military  forces,  there- 
fore, in  taking  possession  of  the  cotton  in  controversy,  were  clearly  acting 
within  the  general  scope  of  their  powers  as  an  army  still  in  possession  of 
enemy  territory,  under  orders  from  their  superior."  lb.  197.  This  seizure 
was  in  the  autumn  and  December,  1865. 


78  THE   QUESTION  OF  TEEASON. 

Latest  Doctrine  on  Confiscation  Acts. 

With  reference  to  the  foundation  for  this  legislation,  it 
is  said  in  this  opinion.     lb.  195. 

"  It  is  quite  true  that  the  United  States,  during  the  late  war, 
occupied  a  pecuhar  position.  Tliey  were,  to  borrow  the  language 
of  one  of  the  counsel  for  the  plaintiff,  both  '  belligerent  and  consti- 
tutional sovereign  ;'  but,  for  the  enforcement  of  their  constitutional 
rights  against  armed  insurrection,  they  had  all  the  powers  of  a  most 
favored  belligerent.  They  could  act  both  as  belligerent  and  sove- 
reign. As  belligerent,  they  might  enforce  their  authority  by 
capture  ;  and,  as  sovereign,  they  might  recall  their  revolted  subjects 
to  allegiance  by  pardon,  and  restoration  to  all  rights,  civil  as 
well  as  political.  All  this  they  might  do  when,  where,  and  as  they 
chose.     It  was  a  matter  entirely  within  their  sovereign  discretion. 

"  It  was  in  this  spirit  that  the  Abandoned  and  Captured  Property 
Act  was  passed.  It  gave  the  Court  of  Claims  authority  to  adjudi- 
cate between  the  belligerent  sovereign  and  the  citizen,  and  to  deter- 
mine the  question  of  capture  or  no  capture,  if  the  owner  or  claimant 
appearing  there  had  been  loyal,"  &c. 

In  Wallach  et  al.  v.  Van  Riswick,  2  Otto  (92  U.  S.),  207, 
Mr.  Justice  Strong,  delivering  the  opinion  of  the  court, 
said :  — 

"  This  act  is  an  act  for  the  confiscation  of  enemies'  property. 
Its  purpose,  as  well  as  its  justification,  was  to  strengthen  the  govern- 
ment and  enfeeble  the  public  enemy  by  taking  from  the  adherents 
of  that  enemy  the  power  to  use  their  property  in,  aid  of  the  hostile 
cause." 

In  Conrad  v.  Waples,  6  Otto  (96  U.  S.),  283,  Mr.  Justice 
Field,  delivering  the  opinion  of  the  court,  said  :  — 

"  The  law  of  July  17,  1862,  so  far  as  it  related  to  the  confiscation 
of  property,  applied  only  to  the  property  of  persons  who  thereafter 
might  be  guilty  of  acts  of  disloyalty  and  treason." 

In  Burbank  v.  Conrad,  6  Otto  (96  U.  S.),  310,  in  a  dis- 
senting opinion  applying  as  well  to  the  last  case,  Mr.  Justice 
Clifford  said :  — 

"  Congress  intended  by  the  Confiscation  Act,  when  it  was  duly 
executed,  to  deprive  the  guilty  owner  of  the  means  by  which  he 


THEORY   OF   OUR  NATIONAL  EXISTENCE.  79 

Shortridge  v.  Macon.     Chase's  Dictum. 

could  aid  the  enemy,  and  it  left  him  no  estate  that  he  could  convey 
for  that  or  any  other  purpose,"  citing  Wallach  v.  Van  Riswick,  2 
Otto,  92  U.  S.  202. 

It  appears  then,  from  the  language  generally  used  by 
the  Supreme  Court  in  cases  arising  under  the  Confiscation 
Acts,  that  the  majority  of  its  members  do  not  regard  their 
provisions  as  punitive  municipal  law,  nor  consider  the 
clauses  of  the  fifth  section  of  the  act  of  July  17,  1862,  as " 
correspondent  to  the  words  in  the  title  :  "  to  punish  treason 
and  confiscate  the  property  of  rebels,^'  however  well  devised 
for  "  other  purposes.''  ^ 

Judge  Chase  at  the  Circuit,  June,  1867,  for  the  District 
of  North  Carolina,  in  the  case  of  Shortridge  v.  Macon,  1 
Abbott's  U.  S.  Rep.  56 ;  Chase's  Decisions,  136,  did  say 
that  the  acts  of  violence  against  the  civil  and  military 
officers  of  the  government  of  the  United  States,  which  had 
occurred  in  North  Carolina,  corresj)onded  in  character  with 
that  "  levying  war  against "  the  United  States  which,  in 
the  Constitution  Art.  III.,  §  3,  had  been  defined  as  "trea- 
son against  the  United  States."  But  as  nobody  then  on 
trial  before  him  was  charged  for  such  acts  of  violence, 
much  less  sentenced  for  treason  on  such  a  charge,  the 
question,  who  the  wicked  individual  was  who  then  and 
there  levied  war,  is  judicially  undetermined  up  to  the 
present  moment ;  and,  consequently,  the  judge's  opinion 
as  to  the  treasonable  character  of  these  acts  is  no  more 
conclusive  than  that  of  anybody  else. 

The  indictment  of  Mr.  Jefferson  Davis  for  treason,  in 
the  United  States  Circuit  Court  for  Virginia,  March  Term, 
1868,  was  dismissed  after  the  issue  of  the  Proclamation  of 
general  amnesty,  by  President  Johnson,  Dec.   25,  1868. 

^  Yet  in  U.  S.  Rev.  St.  §  5G32,  under  marginal  note  "  Punishment  of 
treason,"  among  cases  cited  are  :  Confiscation  cases,  20  Wall.  92;  Waliacli 
et  al.  V.  Van  Riswick,  92  U.  S.  202 ;  Windsor  v.  MacVeigh,  93  U.  S.  274. 


80  THE  QUESTION   OF   TREASON. 

Case  of  Jefferson  Davis. 

Chase's  Decisions,  80  to  124.  But  from  an  indictment, 
alone,  no  legal  principle  can  be  derived.^ 

If  then  the  cases  under  the  so-called  "  Confiscation 
Acts,"  should  be  left  out  of  view  as  not  carrying  out  any 
punishment  whatever,  it  may  be  said  that  there  has  been 
no  judicial  determination  of  any  persons,  being  citizens 
of  one  of  the  eleven  States  compromised  by  the  Rebellion, 
as  guilty  of,  or  liable  to  prosecution,  sentence,  and  punish- 
ment for  treason  or  rebellion,  by  reason  of  acts  committed 
since  the  ordinances  of  secession  were  passed  by  those 
States.^ 

In  most  civilized  countries,  if  the  courts  cannot  settle, 
or  will  not  settle,  the  law  of  allegiance  and  the  crime  of 
treason,  it  would  seem  trifling  to  look  for  instruction  to 
any  other  source.  Still,  in  following  vip  the  history  of  the 
judicial  doctrine  or  ?io-doctrine  on  this  point,  it  is  well  to 
look  at  the  action  of  the  Executive  and  of  Congress,  as  we 
have  in  reference  to  State  existence  and  belligerency. 

The  language  of  Mr.  Lincoln  has  already  herein  been 
cited  as  designating  citizens  and  inhabitants^  in  distinction 

1  In  Shortridge  v.  Macon,  after  stating  the  pretension  that  the  State 
ordinance  of  secession  "  absolved  the  people  of  the  State  from  all  obliga- 
tions as  citizens  of  the  United  States,  and  made  it  impossible  to  commit 
treason  by  levying  war  against  the  national  government,"  Judge  Chase 
said  :  "  No  elaborate  discussion  of  the  theoretical  question  thus  presented 
seems  now  to  be  necessary.  The  question,  as  a  practical  one,  is  at  rest,  and 
is  not  likely  to  be  revived.  It  is  enough  to  say  liere  that,  in  our  judgment, 
the  answer  which  it  has  received  from  events,  is  that  which  the  soundest 
construction  of  the  Constitution  warrants  and  requires."  Chase's  Decisions, 
140.  Is  it  to  be  inferred  that,  if  Mr.  Davis's  indictment  had  gone  to  tlie  jury, 
the  judge  would  have  charged  that  the  question  was  "  theoretical "  or  settled 
by  the  "  issue  of  battle  "  only  ^ 

2  In  Rev.  Stat.  U.  S.  ed.  1878,  p.  25,  the  only  cases  cited  for  the  consti- 
tutional definition  of  treason  are  the  older  ones.  United  States  v.  Insurgents, 
2  Dall.  335 ;  United  States  v.  Mitchell,  2  Dall.  348 ;  Ex  parte  Bolhnan  and 
Swartwout,  4  Cranch,  75 ;  United  States  v.  Aaron  Burr,  4  Cranch,  4G9 ;  and, 
for  the  clause  limiting  tlie  punishment  for  treason,  Bigelow  r.  Forest,  9  Wall. 
339;  Day  v.  Micou,  18  Wall.  150;  Ex  parte  h-JiUge,  18  Wall.  163;  Wallach 
et  al.  V.  Van  Riswick,  92  U.  S.  202. 


THEORY  OF   OUR   NATIONAL   EXISTENCE.  81 

Action  of  the  Executive  and  Legislature. 

from  States,  as  the  parties  chargeable  with  insurrection, 
rebellion,  and  treason. 

That  Mr.  Johnson  must  have  believed  that  rebellion 
and  treason  were  chargeable  against  some  citizens  indi- 
vidually, must  be  inferred  from  his  various  Proclamations 
of  Amnesty ;  that  of  May  29,  1865,  12  U.  S.  Stat.  758, 
which  makes  exception,  from  its  benefits,  of  certain  per- 
sons or  classes  of  persons,  and  that  of  Sept.  7,  1867,  15 
U.  S.  Stat.  699,  that  of  July  4,  1868,  ib.  702.  His  Procla- 
mation of  Dec.  25,  1868,  15  U.  S.  Stat,  712,  declares,  — 

"  To  all  and  every  person  who  directly  or  indirectly  participated 
in  the  late  insurrection  or  rebellion  full  pardon  and  amnesty  for  the 
offence  of  treason  against  the  United  States,  or  of  adhering  to  their 
enemies,  during  the  late  civil  war,  with  restoration  of  all  rights  and 
privileges,"  &c. 

If  the  so-called  Confiscation  Acts  are  to  be  left  out  of 
view,  as  not  being  intended  for  municipal  penal  legislation 
(ante,  p.  79),  the  only  legislation  affecting  private  per- 
sons in  view  of  past  transactions,  or  which  can  be  popu- 
larly supposed  to  have  an  application  to  anybody  in  view 
of  past  transactions  called  rebellion  or  insurrection,  is  to 
be  found  in  the  several  Acts  of  Congress  removing  the 
disabilities  declared  in  the  3d  Section  of  the  Fourteenth 
Amendment,  adopted  July  21,  1868.^ 

It  may  very  probably  be  commonly  held,  in  this  conhec- 

1  To  be  found  among  the  Private  Acts,  such  as  An  Act  to  relieve  certain 
persons,  ^-c,  passed  Dec.  14,  1869,  16  U.  S.  Stat.  607.  "After  the  authority 
of  government  shall  have  been  re-established  over  the  rebellious  districts, 
measures  may  be  taken  to  punish  individual  criminals.  The  popular  sense 
of  outraged  justice  will  embody  itself  in  more  or  less  stringent  legislation 
against  those  who  have  brought  civil  war  upon  us.  It  woidd  be  surprising 
if  extreme  severity  were  not  demanded  by  the  supporters  of  the  Union,  in 
all  sections  of  the  country.  Nothing  short  of  a  general  bill  of  attainder, 
it  is  presumed,  will  fully  satisfy  some  of  the  loyal  people  of  the  slave 
States."  W.  Whiting,  The  War  Powers  under  the  Constitution,  84,  pub- 
lished in  1864. 


82  THE  QUESTION  OP   TREASON. 

Third  Section  of  tiie  Fourteenth  Amendment. 

tion,  that,  whatever  may  be  the  dependence  of  other  coun- 
tries on  courts  of  law  to  pass  sentence  on  rebels  or  traitors, 
we  have  here,  in  virtue  of  a  written  constitution,  a  supe- 
rior method.  It  will  perhaps  be  said,  this  Amendment 
was,  itself,  judgment  by  the  supreme  power-holder  as  to 
the  persons  then  chargeable  for  treason  and  rebellion,  as 
well  as  to  the  degree  of  punishment ;  a  judgment  which 
precluded  all  ordinary  judicial  inquiry  to  determine  any 
private  persons  as  guilty  of  treason.^ 

It  was  on  this  construction  of  the  Amendment,  that  Mr. 
Davis's  motion  to  quash  the  indictment  against  himself  was 
based,  in  these  words,  — 

"And  the  defendant  alleges  in  bar  of  any  proceedings  upon  the 
said  indictments,  or  either  of  them,  the  penalties  and  disabilities 
denounced  against  him  for  his  said  alleged  offence  by  the  third 
section  of  the  fourteenth  article  of  the  Constitution  of  the  United 
States,  forming  an  amendment  to  such  Constitution,  and  he  insists 
that  any  judicial  proceeding  to  inflict  any  other  or  further  pain, 
penalty,  or  punishment  upon  him  for  such  alleged  offence  is  not 
admissible  by  the  Constitution  and  laws  of  the  United  States." 
Chase's  Decisions,  85.^ 

1  Fourteenth  Amendment,  §  3.  "  No  person  shall  be  a  Senator  or  Rep- 
resentative in  Congress,  or  elector  of  President  and  Vice-President,  or  hold 
any  office,  civil  or  military,  under  the  United  States,  or  under  any  State, 
wlio  having  previously  taken  an  oath  as  a  member  of  Congress,  or  as  an 
officer  of  the  United  States,  or  as  a  member  of  any  State  legislature,  or  as 
an  executive  or  judicial  officer  of  any  State  to  support  the  Constitution  of 
the  United  States,  shall  have  engaged  in  insurrection  or  rebellion  against 
the  same,  or  given  aid  or  comfort  to  the  enemies  thereof.  But  Congress 
may,  by  a  vote  of  two-thirds  of  each  House,  remove  such  disability."  De- 
clared to  have  been  ratified  by  Proclamation  of  the  Secretary  of  State,  July 
28,  1868,  under  direction  of  joint  resolution  of  Congress.  See  U.  S.  Rev. 
Statutes,  p.  31,  note. 

'^  Under  this  construction  and  application  of  the  Amendment,  it  would 
appear  that,  as  Mr.  Davis  could  not  be  fined,  nor  imprisoned,  nor  hung, 
under  the  statute,  because  already  punished  by  disqualification  from 
office  under  the  Amendment,  so,  vice  versa,  he  should  not  be  disqualified  from 
office,  under  the  Amendment,  if  he  had  got  fined,  or  imprisoned,  or  hung, 
under  the  Statute. 


THEORY   OF  OUR   NATIONAL  EXISTENCE.  83 

Case  of  Jefferson  Davis.    Chase's  Dictum. 

After  hearing  arguments  on  both  sides,  ib.  85-122,  the 
court  —  Judges  Chase  and  Underwood  —  disagreed,  and 
certified  their  disagreement  to  the  Supreme  Court  of  the 
United  States.     Ib.  123. 

"  Whereupon  the  court  adjourned.  No  further  proceedings  were 
had  in  the  cause.  The  Proclamation  of  General  Amnesty  by  the 
President  of  the  United  States,  at  the  end  of  December,  18G8, 
effectually  disposed  of  the  criminal  prosecution,  and  the  certificate 
of  disagreement  rests,  among  the  records  of  the  Supreme  Court, 
undisturbed  by  a  single  motion  for  either  a  hearing  or  a  dismissal. 
At  a  subsequent  term  of  the  Circuit  Court,  the  indictments  against 
Mr.  Davis  were,  on  motion  of  his  counsel,  dismissed."    Ib.  124.^ 

To  this  the  reporter  adds,  — 

"The  Chief  Justice  [Chase]  instructed  the  reporter  to  record 
him  as  having  been  of  opinion,  on  the  disagreement,  that  the  indict- 
ment should  be  quashed,  and  all  further  proceedings  barred  by  the 
effect  of  the  Fourteenth  Amendment."    Ib.  124.^ 

Since  each  State,  as  a  several  State,  and  as  one  of  the 
United  States,  exercised  its  authority  in  the  adoption  of 
this  Amendment,  it  was  like  the  legislative  act  of  an  inte- 
gral or  consolidated  sovereignty,  and,  as  such,  any  legisla- 

1  Is  it  impertinent  to  ask,  If  the  disqualification  in  the  Amendment  is 
intended  as  penalty  for  past  offences,  like  fine,  imprisonment,  and  hanging, 
under  the  statutes,  why  does  not  the  amnesty  relieve  the  persons  afTected, 
from  the  disability,  as  it  would  from  sentence  of  loss  of  property,  liberty, 
and  life  ? 

2  "We  have,  therefore,  the  opinion  of  the  Chief  Justice  that  the  disquali- 
fication was  intended  as  punishment  for  the  crime  of  engaging  in  insurrec- 
tion and  rebellion  against  the  United  States,  &c.,  and  in  Mr.  Davis's  motion 
to  quash  the  indictment  we  have  his  own  admission  that  he  did  things 
which,  in  the  Amendment,  are  called  by  the  same  ugly  names.  But  there 
is  no  judicial  declaration,  that  the  acts  so  charged  and  so  admitted  were 
criminal,  to  be  found  on  the  records;  and  neither  Mr.  Davis,  nor  any  of  his 
associates  have  ever  done  or  said  any  thing  equivalent  to  an  admission  to  that 
effect.  In  the  absence  of  all  judicial  inquiry,  how  is  any  particular  person 
distinguishable  as  witiiin  the  terms  of  this  Amendment  1  Unless  ordinary 
popular  opinion  —  at  the  North  —  is  supposed  equivalent  to  judicial  sentence  ? 


84  THE  QUESTION  OF  TREASON. 

Operation  of  the  Fourteenth  Amendment. 

tive  attribution  of  criminal  character  to  antecedent  acts 
may  be  conclusive.  But  it  is  legislation  in  the  nature  of 
Ex  post  facto  law,  Bills  of  Attainder^  Bills  of  Pains  and 
Penalties^  and  Test  Acts,  which  English-speaking  com- 
munities have  been  educated  to  regard  as  peculiar  to 
despotic  governments.^ 

But  if  the  doctrines  of  English  civil  liberty  are  not 
repudiated  in  this  application  of  the  Amendment  to  the 
private  citizen,  the  interpretation  claimed  for  it  presents 
an  anomaly,  considered  as  public  law  determining  the 
related  powers  of  the  general  government  and  of  the 
several  States.^ 

The  question,  whether  treason,  in  this  instance,  was 
chargeable  on  certain  natural  persons  depended  on  the 
question  whether  they  then  stood  in  that  relation  to  the 
United  States,  or  the  government  of  the  United  States,  as 
citizens,  that  they  could  commit  treason.  If  the  Amend- 
ment is  regarded  as  a  judgment  against  the  citizens  of 
eleven  States,  forced  by  the  government  of  the  United 
States  from  those  eleven  States,  as  being  parts  of  the 
United  States,  it  is  something  worse  than  an  anomaly. 
If  regarded  as  constitutional  demarcation  of  the  distri- 
bution of  power  between  the  States  united,  and  the  States 
scA^erally,  to  settle  tlieir  respective  claims  on  the  allegiance 
of  the  citizen  in  the  past,  tlie  Amendment  presents  a  new 
phenomenon  in  the  history  of  American  constitutions. 

1  On  the  motion  to  quash  the  indictment  in  Mr.  Davis's  case,  Mr. 
O'Conor  maintained,  "  the  provision  is  retrospective  only.  Penalties  and 
punishments  denounced  by  positive  law  are  prima  facie  prospective  only. 
The  ordinary  legislator  is  rarely  empowered  to  give  them  a  retrospect. 
But  the  sovereign  authority,  from  which  this  provision  emanated,  was  under 
no  other  than  moral  restraints  in  that  respect,  and  it  will  be  conceded  that 
the  disqualification  is  pronounced  for  offences  previously  committed.  That 
intent  cannot  be  denied,  and  the  words  employed  are  adequate  to  express  it. 
But  they  are  wholly  incompetent  to  include  past  and  future  delinquents." 
Chase's  Decisions,  113. 

2  Story,  Comm.  §  1344,  1345. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  85 

Operation  of  the  Fourteenth  Amendment. 

That  tlie  distribution  of  the  powers  of  sovereignty  be- 
tween the  States  severally  and  the  States  in  union  should, 
in  cases  arising  under  a  written  constitution,  as  lau\  be 
determined  by  a  judiciary  forming  part  of  the  general 
government,^  was  a  political  experiment  without  pre- 
cedent. But  if  this  Amendment  is  taken  for  a  judgment 
on  the  question  of  allegiance  by  the  States  in  union  against 
themselves  separately,  under  a  law  therein  declared,  it  is 
something  difficult  to  define ;  unless  by  comparison  with 
the  petitio  jjriiicipii  in  logic,  or  the  Hibernian  bull. 

A  change  in  the  distribution  of  sovereignty  may  have 
taken  place,  —  whether  by  the  military  success  of  one 
claimant,  or  by  voluntary  cession  of  the  former  power- 
holder,  is  immaterial  for  this  inquiry  ;  and  this  may 
now  be  defined  in  the  Amendment.^  But  neither  Amend- 
ment, nor  cession,  nor  issue  of  battle,  can  be  equivalent  to 
judicial  settlement  of  treason,  as  a  question  under  the 
pre-existing  distribution. 

The  only  volume  strictly  belonging  to  legal  literature 
which  has  appeared  since  the  war,  and  which  might  be 
cited  in  an  exposition  of  the  American  law  of  treason,  is 
the  volume  of  decisions  by  Chief  Justice  Chase,  edited  by 
General  Bradley  T.  Johnson ;  generally  cited  as  Chase's 
Decisions.^ 

^  This  is  on  tlie  supposition  that  tliis  had  been  the  original  design.  See 
ante,  tlie  note  on  p.  19. 

2  Mr.  B.  T.  Johnson,  in  Preface  to  Chase's  Decisions,  IV.,  says  that  the 
late  Cliief  Justice's  "decisions  on  tlie  questions  growing  out  of  the  war  .  .  . 
had  settled  the  principles  on  which  the  new  Constitution  of  the  United  States 
was  to  be  administered  under  the  new  conditions  of  society." 

3  Reports  of  cases  decided  by  Chief  Justice  Chase  in  the  Circuit  Court 
of  the  United  States  for  the  Fourth  Circuit,  during  the  years  1865  to  1800, 
both  inclusive,  in  the  Districts  of  Maryland,  Virginia,  North  Carolina,  and 
South  Carolina.  Revised  and  corrected  by  the  Cliief  Justice :  Containing  an 
Appendix  with  the  Constitution  of  the  Confederate  States  of  America,  and  tlie 
Conscription,  Impressment,  and  Sequestration  Acts  of  that  Government.  By 
Bradley  T.  Jolinson,  of  the  Virginia  Bar.  New  York :  Diossv  &  Company. 
1876. 


86  THE   QUESTION   OF   TREASON. 

Johnson's  Chase's  Decisions. 

It  appears  from  the  preface  that  the  Chief  Justice  had 
co-operated  in  Mr.  Johnson's  publication,  and  had  "  re- 
vised the  manuscripts,  making  such  corrections  as  he 
deemed  necessary,  which  were  generally  merely  verbal, 
and  in  the  main  consisted  in  softening  the  language  and 
expressions  used  in  alluding  to  the  war.  He  struck  out 
the  words  '  rebellion,'  '  rebels,'  '  insurrection,'  and  '  in- 
surgents,' and  substituted  the  words  '  civil  war,'  bellige- 
rents,' &c.,  wherever  the  sense  of  the  text  would  permit, 
and  instructed  "  Mr.  Johnson  "  to  do  so  wherever  he  had 
overlooked  it."  ^ 

The  expressions  which  have  been  "  softened,"  are  the 
most  material  part  of  the  opinions,  in  their  political  bear- 
ing. Those  which  have  been  thus  manipulated,  after 
delivery,  can  hardly  claim  to  be  reported^  as  decisions  judi- 
cially developed  with  the  prestige  of  adjudged  cases.  If 
statements  of  political  fact  derive  any  authority  from  the 
judicial  office,  it  must  be  with  their  original  diction. 

This  volume  should  rather  be  regarded  as  a  joint  expo- 
sition of  the  views  of  two  private  jurists,  as  to  the  political 
questions,  than  as  a  volume  of  decisions.  Accepting  all 
the  statements  in  the  preface,  it  is  still  doubtful  whether 
Judge  Chase  intended  to  abandon  any  doctrine  on  the 
subjects  connected  with  the  war  which  may  be  gathered 
from  his  decisions  in  this  volume,  or  reported  elsewhere ; 
and  how  far  the  Chief  Justice  of  the  Supreme  Court,  and 
his  reporter,  distinguished  not  only  as  a  lawyer,  but  also  as 
a  general  officer  in  the  military  service  of  the  recent  Con- 

^  The  question  is  whether  Judge  Chase  intended  to  repudiate  liis  own 
language  in  Shortridge  v.  Macon,  Cliase's  Dec.  140.  "  Nor  can  we  agree  with 
some  persons,  distinguished  by  abihtjcs  and  virtues,  wlio  insist  tliat,  wiien 
rebellion  attains  the  proportions  and  assumes  the  character  of  civil  war,  it 
is  purged  of  its  treasonable  character,  and  can  only  be  punished  by  the  de- 
feat of  its  armies,  the  disappointment  of  its  hopes,  and  the  calamities  inci- 
dent to  unsuccessful  war."  His  reporter  intimates  that  he  did  so  intend. 
See  ante,  p.  52. 


THEORY  OF  OUR   NATIONAL  EXISTENCE.  87 

The  two  opposed  Political  Views. 

federacy,  were  in  accord,  as  publicists,  on  the  political 
question,  does  not  appear. 

As  stated  in  beginning  this  inquiry,  judicial  opinions 
on  political  questions  have  value,  mainly,  as  testimony ; 
which  may  be  compared  with  other  evidence.  A  change 
of  language,  in  reference  to  decided  cases,  where  no  new 
circumstances  are  alleged,  is  discrepancy,  which  weakens 
the  force  of  either  statement. 

Can  it  be  supposed  that,  if  the  case  of  Texas  v.  White 
had  been  included  in  this  volume,  as  had  been  proposed 
before  the  decease  of  the  Chief  Justice,  he  would  have 
"  softened  expressions  "  which  he  had  there  used  in  the 
name  of  the  court  ? 

If  any  conflict  of  political  doctrine  may  be  traced  on 
comparing  the  language  of  courts,  presidents.  Congress, 
or  professional  jurists,  in  reference  to  the  position  of  the 
States,  or  the  questions  of  belligerency,  or  of  treason,  as  it 
has  here  been  cited,  it  might  readily  be  associated  in  our 
minds  with  that  general  conflict  of  public  belief  as  to  the 
nature  of  the  union  of  the  States  which  had  existed  at 
and  from  the  time  of  the  adoption  of  the  Constitution  ; 
leading  to  two  views,  more  or  less  distinctly  opposed,  of 
the  powers  of  the  government  of  the  United  States  and  of 
the  rights  of  the  States,  to  which  expression  had  been  given 
not  only  from  the  Presidential  chairs,  in  Congress,  and  on 
the  Bench,  but  also  in  the  rivalship  of  two  great  political 
parties,  holding  one  or  the  other  of  these  views,  more  or 
less  constantly  and  consistently,  and,  above  all,  in  the 
antagonism  of  sections  distinguished  as  "  the  North,"  and 
"  the  South,"  culminating  in  a  civil  war,  in  which  the 
affirmance  and  denial,  on  either  hand,  of  one  and  the  other 
of  these  views  seemed  to  be  involved. 

According  to  one  of  these  two  prevailing  views,  —  the 
view  held,  in  a  general  way,  by  one  of  these  two  parties, 
and  one  "  political  school,"  and  more  distinctly  by  "  the 


88  STATE  EIGHTS   AND   SECESSION. 

The  Doctrine  of  Secession  and  its  Opposite. 

South," — the  operation  of  the  Constitution,  as  law,  in  each 
several  State  is  constantly  dependent  upon  the  continuing 
consent  of  such  State.  It  was,  as  the  obvious  consequence 
of  this  proposition,  that  the  right  (faculty)  of  each  State 
to  nullify  the  operation  of  the  laws  of  Congress  within  its 
own  limits,  and  the  right  to  secede  —  "  the  right  of  peace- 
able secession  "  —  for  any  reason  appearing  sufficient  to 
the  State,  or,  for  that  matter,  for  no  reason  at  all,^  was 
asserted  by  the  Southern  States  without  much  distinction 
of  former  party  lines. 

According  to  the  opposite  view,  generally  received 
among  the  opposed  party,  or  rather  by  one  political 
school,  and  more  particularly  by  "  the  North,"  the  oper- 
ation of  the  Constitution  as  to  each  State  is  constantly 
independent  of  the  consent  of  the  State;  and  it  is  as  a 
consequence  of  this  proposition  that  nullification  and  the 
right  or  capacity  of  a  State  to  secede,  "  the  right  of  peace- 
able secession,"  has  been  generally  denied  and  resisted 
by  those  who  supported  the  government  of  the  United 
States  against  the  attempt  to  establish  a  Southern  Con- 
federacy.^ 

But  in  none  of  the  judicial  opinions  above  cited  is  this 

1  Tlie  right  being  a  political  right,  there  is  neither  morality  nor  immo- 
rality in  its  exercise,  if  it  exists.  A  citizen  miglit  have  opposed  the  purpose 
of  his  State  to  secede,  and  yet  support  it  from  a  sense  of  duty,  when  once 
resolved  on  by  the  State.  As  in  tlie  instance  of  Mr.  A.  H.  Stephens,  whose 
course  as  an  official  of  the  Confederacy,  after  having  opposed,  in  conven- 
tion, the  secession  of  his  State,  has  often  been  stigmatized  at  the  Nortlwas 
violation  of  acknowledged  duty.  (As  in  Report  of  the  Committee  on  Re- 
construction, "  a  man  who  against  his  own  declared  convictions,"  &c.)  In 
fact,  his  previous  opposition  should  be  held  a  guaranty  of  his  belief  in  the 
political  capacity  of  the  State. 

^  It  is  undeniable  that,  in  the  minds  of  many  persons  wlio  supported  the 
government  against  attempted  secession,  the  political  duty,  founded  on  this 
view,  was  entirely  subordinate  to  motives  of  resisting  the  contimiance  of 
negro  slavery  (see,  among  others,  the  pamphlets  issued  by  the  Loyal  Publi- 
cation Society,  New  York),  and  that  many  others  regarded  their  own  State, 
represented  by  tlie  General  Government,  as  the  party  claiming  their  political 
obligation  in  the  war. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  89 

The  Doctrine  of  Secession  and  its  Opposite. 

right  or  capacity,  in  a  State,  recognized  ;  and  we  may 
assume  that  no  theory  of  the  Constitution  which  neces- 
sarily involves  it  has  been  accepted  by  any  member  of 
the  court  since  1861,  and  certainly  not  by  a  majority.^ 

On  the  contrary,  the  existence  of  such  a  right  or  capaci- 
ty is,  in  many  instances,  expressly  denied  by  various  mem- 
bers of  the  court ;  some  of  whom,  by  apparent  reversal  of 
the  ancient  maxims, —  Cedant  arma  togce;  —  Inter  arma 
silent  leges,  —  in  their  statements  of  this,  profess  to  accept 
the  demonstration  of  military  success  as  similar,  in  its  re- 
lation to  judicial  opinion,  to  forensic  argumentation.^ 

1  Probablj'^  even  Mr.  Justice  Grier  did  not  consider  it  recognized  by  him- 
self in  what  he  said  in  the  Prize  Cases  and  in  Texas  v.  Wliite ;  though  it 
may  be  difficult  to  see  how  such  a  conclusion  from  his  language  can  be  logi- 
cally avoided. 

2  See  the  language  of  Grier,  J.,  in  Texas  v.  White,  ante,  p.  17,  and  in  the 
Prize  Cases,  ante,  p.  17.  In  tiie  Legal  Tender  Cases,  12  Wall.  553,  Bradley, 
J.,  said :  "  The  doctrines  so  long  contended  for,  that  the  Federal  Union  was 
a  mere  compact  of  States,  and  that  the  States,  if  they  chose,  might  annul  or 
disregard  the  acts  of  the  National  legislature,  or  might  secede  from  the 
Union  at  their  pleasure,  and  tliat  the  General  Government  had  no  power  to 
coerce  them  into  submission  to  the  Constitution,  should  be  regarded  as 
definitely  and  for  ever  overthrown.  This  has  been  finally  effected  by  the 
National  power,  as  it  had  often  been  before,  by  overwhelming  arguments." 

This  view  of  the  demonstration,  in  whicii  artillery  and  logic  are  on  the 
same  plane,  is  probably  in  harmony  with  prevailing  popular  sentiment.  It 
is  almost  needless  to  refer  to  publications  (historical  or  political)  since  the 
war  in  which  similar  ideas  have  been  expressed  ;  e.  g.,  Frothingham's  Rise 
of  the  Republic  of  the  United  States,  pp.  3,  4,  608;  G.  T.  Curtis's  Discourse 
on  the  Nature  of  tlie  American  Union,  &c.,  p.  8;  —  "  But  tliis  was  tlie  great 
point  of  the  debate  tliat  came,  after  all  otlier  modes  of  debate  had  been  ex- 
hausted, to  be  referred  to  the  arbitrament  of  battle."  If  the  issue  of  the 
war  had  been  otherwise,  would  the  courts  have  held,  against  the  old  "  over- 
wlielming  argument "  that  the  doctrine  of  a  State's  right  of  peaceable  seces- 
sion had  been  established,  for  the  States  remaining  in  the  Union?  If  the 
issue  of  battle  is  to  be  regarded  like  a  judicial  precedent  for  similar  cases, 
may  the  political  motives  be  taken  in  consideration,  in  determining  what 
may  be  a  similar  case  "?  Will  the  precedent  hold  in  an  instance  where  the 
conservation  of  domestic  slavery  is  not  involved?  This  suggestion  is  rele- 
vant, in  view  of  the  countless  instances  in  which  the  war  has  been  regarded 
as  one  for  or  against  certain  doctrines  of  natural  right,  and  not,  intrinsically, 
for  the  maintenance  of  some  established  political  authority. 


90  A   DISCOVERY   IN   DOCTRIXE, 

States  obliged  to  exist  as  States. 

But  whether  "  effected  "  by  a  certain  amount  of  blood- 
shed, or  "  by  overwhelming  argument,"  the  doctrine  con- 
tended for  is,  so  far,  still  the  same  it  had  been  from  its 
earliest  period. 

In  these  recent  opinions  of  the  court,  more  has  come  to 
light. 

The  States  are  not  only  bound  to  regulate  themselves 
by  its  provisions,  but  the  Constitution  compels  them  to  be 
"what  they  are,  —  to  exist,  —  to  he  States. 

The  doctrine  thus  announced  by  the  court  is  really  one 
which  no  political  party,  or  school,  or  section  of  the  coun- 
try, had  ever  before  asserted.^  The  discovery  of  this  fac- 
ulty in  a  written  instrument,  so  many  years  after  its 
adoption,  should,  if  real,  be  regarded  as  marking  an  era  in 
the  development  of  constitutional  politics.  The  merit  of 
such  discovery,  however,  should  not  perhaps  be  engrossed 
by  the  judiciary. 

The  question,  at  the  close  of  the  war,  was,  —  Where  is 
the  sovereign  power  vested  which  was  vindicated  by  the 
military  success  of  the  Constitutional  government?  and 
now  each  citizen  is  obliged  to  ask  himself,  — 

Must  I,  if  I  reject  the  doctrine  of  State  sovereignty 
with  the  right  of  peaceable  secession,  accept  propositions 
like  these,  about  —  States  holding  sovereignty  as  States  of 
the  union  under  law  derived  from  that  sovereignty  ;  — 
States  composing  a  union  which  compels  them  to  compose 
it ;  —  States,  separately,  owing  allegiance  to  themselves  as 

1  It  may,  however,  be  taken  up  hereafter  by  some,  for  wliose  political 
advantage  its  discoverers  would  not  have  expected  it  to  apply.  See  the 
Resolutions  reported  by  joint  committees  of  the  Senate  and  House  of  the 
Virginia  legislature,  Richmond,  Jan.  18,  1879,  in  regard  to  the  action  of 
Judge  Rives,  of  the  Western  District  of  Virginia,  especially  the  fourth,  "  That 
the  preservation  of  the  States,  and  the  maiiitonance  of  their  governments  are 
as  much  within  the  design  and  care  of  the  Constitution,  as  the  preservation  of 
the  Union  and  the  maintenance  of  the  Federal  government,  and  separate 
and  independent  autonomy  of  the  States  is  necessary  to  the  Union  under  the 
Constitution."    Newspaper  rei)orts  of  tlie  date. 


THEORY   OF   OUE   NATIONAL  EXISTENCE.  91 

A  Chaos  of  Doctrine. 

a  union  ;  —  a  union  distinct  from  the  States  which  com- 
pose that  union  ;  —  States  in  union  against  their  wills  ; 
—  States,  under  a  general  government  which  came  into 
b^ing  and  which  continues  to  be  by  their  action,  con- 
siituting  a  union  in  respect  to  which  they  are,  singly, 
like  counties  or  townships  to  a  State  ;  —  war  against 
the  Union  by  States  which  are  themselves  members  of 
that  Union ;  —  acts  proved  void  by  a  war  waged  be- 
cause they  were  not  valid  ;  — a  government  suppressing  a 
rebellion,  by  arms,  to  find  out  whether  there  was  any  re- 
bellion against  it  at  all ;  —  governments  supported  by  the 
people  of  a  State,  which  are  not  the  State  governments, 
though  the  State  is  still  a  State  ;  —  States  usurping  their 
own  governments  ;  —  State  governments  usurping  by  the 
will  of  the  people  governed  ;  —  States  suffering,  by  the 
will  of  their  people,  from  a  non-republican  government, 
and  entitled  to  have  a  government  forced  on  their  people, 
as  republican  government  guaranteed  to  the  State  ;  — 
States  and  people  rebels,  because  under  usurped  govern- 
ments ;  —  States  keeping  their  political  capacities,  without 
power  to  use  them,  while  their  governments  and  all  their 
citizens  are  public  enemies  of  the  United  States,  including 
such  States  ;  —  States  having  belligerent  capacity,  by 
their  political  nature,  while  their  citizens,  by  fighting  un- 
der their  banners,  commit  treason  against  the  other  bel- 
ligerent ;  —  conquest,  or  political  subjugation,  and  judicial 
punishment  for  treason  being  predicable  on  the  same 
facts  ;  —  a  government  deriving  power  from  the  law  of  in- 
ternational war  to  make  a  new  law  of  war ;  —  raw  agri- 
cultural products  becoming  munitions  of  war  by  being 
commercial  staples  in  time  of  peace  ;  —  powers  belonging 
to  commanders  in  the  field,  by  usage  of  war,  exercised  at  a 
belligerent's  capital  by  a  legislature  under  a  limited  consti- 
tution ;  —  legislative  power  by  a  belligerent  state  over  its 
subjects  as  alien  enemies;  —  citizens  whose  property', taken 


92  CONTRADICTIOKS   REJECTED. 

The  Inquiry  herein  to  be  made. 

from  them  as  alien  enemies,  is  returned  to  them  on  proof 
that  they  were  not  traitors; — citizens,  in  the  character  of 
alien  enemies,  receiving  punishment  clue  to  them  as  trai- 
tors or  rebels  ;  —  citizens  who,  in  law,  are  alien  enemies  ;  — 
citizens  who  suffer  punishment  for  treason  when  no  court 
has  passed  on  the  question  of  treason  ;  —  constitutional  pro- 
visions for  securing  faithful  administration  of  government 
applied  as  amnesty,  for  leaders,  against  loss  of  life,  liberty, 
and  property,  under  statutes  still  enforceable  against  the 
commoner  rebels,  &c.,  which  have  been  presented,  as  the 
only  alternative,  by  Executive,  Legislature,  Judiciary,  and 
popular  acclamation  ? 

When  contradictions  in  terms  are  offered  as  conclusions 
from  serious  argument,  any  direct  attempt  at  refutation  is 
out  of  place. 

In  the  following  chapters,  without  appealing  to  any  opin- 
ions, either  of  the  judiciary  or  of  others,  as  authority  on  a 
question  which  is  in  its  nature  historical,  I  shall  attempt  to 
show  that  the  action  of  the  Government,  as  against  the  pro- 
posed secession  of  the  eleven  States,  can  be  justified  as  in 
general  accordance  with  the  political  constitution  of  the 
States  in  union  as  a  sovereign  nationality  ;  by  the  pre- 
existence  of  which  political  constitution,  not  only  in  the 
order  of  time  but  also  in  the  order  of  cause  and  effect,  the 
written  Constitution  for  government  within  their  national 
domain  became  and  continued  to  be  the  supreme  law  of  the 
United  States ;  and  I  hope,  by  this  method,  to  prove,  inci- 
dentall}',  that  it  is  unnecessary  to  accept  any  such  incon- 
sistent apologies  for  suppressing  treason  and  rebellion. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  93 

The  Constitution  as  Law  and  as  Fact. 


CHAPTER    HI. 

The  Possession  of  Sovereign  Power  not  determinable  by  the  Con- 
stitution AS  Law.  —  In  what  Sense  determinable  by  History. 
—  Different  historical  Statements  as  to  the  Location  of  that 
Sovereignty  by  which  the  Constitution  was  established.  —  The 
HISTORICAL  Question  as  affected  by  the  War. 

The  sphere  of  American  politics  is  so  remote  from  that 
of  the  old  world  that  it  escapes  that  constant  and  inter- 
ested observation  which  is  a  mutual  necessity  for  the 
various  states  of  Europe,  and  which  originates  there,  and, 
more  i3articularly,  in  England,  such  a  wealth  of  con- 
temporary history  and  political  criticism.  Americans 
are,  for  this  reason,  inclined  to  feel  more  flattered 
than  is  perhaps  consistent  with  self-respect  when  their 
institutions  are  made  a  study  by  a  European  writer  ;  but 
also  disposed,  perhaps,  to  be  a  little  inclined  to  over-sensi- 
tiveness and  to  resent  any  thing  like  disapprobation.  We 
cannot,  however,  deny  that  it  is  well  for  us,  as  a  nation  as 
well  as  men,  to  see  ourselves  as  others  see  us.  We  ought 
to  welcome  that  more  interested  observation  and  criticism 
which  now  appears  as  incidental  to  our  national  growth. 

In  the  first  volume  of  his  work  entitled  "  The  Constitu- 
tional and  Political  History  of  the  United  States,"  ^  by  Dr. 
H.  Von  Hoist,  of  Strasburg,  Germany,  the  author  explains 
what  he  there  calls  "  the  inspiration  theory  "  of  the  origin  of 
the  Constitution,  and  the  heading  of  his  second  chapter  is 
"  The  worship  of  the  Constitution  and  its  real  character." 

On  page  65,  the  author  says,  — 

1  The  title  of  the  first  volume  in  the  original  is  "  Verfassung  und  Demo- 
kratie  der  Vereinigten  Staaten  von  Amerika.  I  Theil :  Staatensouveriinetilt 
und  Sklaverei." 


94  SOVEREIGNTY  AISTD   CONSTITUTION. 

Von  Hoist,  on  the  Worship  of  the  Constitution. 

"■  It  is  possible  for  us  to  trace  the  earliest  beginnings  of  the  wor- 
ship of  the  Constitution.  At  first,  it  was  looked  upon  as  the  best 
possible  constitution  for  the  United  States.  By  degrees  it  came 
to  be  universally  regarded  as  a  masterpiece  applicable  to  every 
country." 

He  remarks  further  on,  — 

"  This  is  not  the  jilace  to  go  into  a  thorough  investigation  of  the 
causes  which  led  all  classes  of  the  people  to  a  veneration  for  the 
Constitution,  that  bore  at  once  the  character  of  an  esteem  which  did 
much  good,  and  of  a  most  ruinous  idolatry,  in  which  the  idol  wor- 
shipped was  themselves."     lb.  p.  68. 

"  The  tendency  to  the  creation  of  political  dogmas  kept  pace 
with  the  development  of  democracy.  At  the  head  of  all  these 
dogmas,  —  those  of  natural  rights  and  the  social  compact  in  part 
excepted,  —  stood  the  supremacy  of  the  Constitution."     lb.  p.  72. 

"  The  political  philosophy  of  the  masses  was  comprised  in  these 
vague  maxims.  They  clung  to  them  with  all  the  self-complacent 
obstinacy  of  the  lowest  and  most  numerous  body  of  the  working 
classes.  They  were  nowhere  more  sensitive  than  here.  Whoever 
desired  their  favor  dared  not  to  touch  this  idol  of  theirs,  and  could 
scarcely  ignore  it  unpunished.  The  fetish  had  been  raised  up  for 
the  worship  of  the  masses  by  their  leaders ;  and  the  masses,  in 
turn,  compelled  their  leaders  to  fall  down  and  adore  it.  Under  no 
form  of  government  is  it  so  dangerous  to  erect  a  political  idol,  as 
in  a  democratic  republic ;  for,  once  erected,  it  is  the  political  sin 
against  the  Holy  Spirit  to  lay  hands  upon  it. 

"The  history  of  the  United  States  affords  the  strongest  and  most 
varied  proof  of  these  assertions.  Not  only  the  quarrels  of  1787 
and  1788,  but  also  the  circumstances  under  which  the  Constitution 
originated,  would  have  inclined  one  to  believe  any  thing  rather  than 
that  the  Constitution  would  be  chosen  as  the  chief  idol  of  the 
people."     lb.  p.  75. 

These  expressions,  with  much  more  to  the  same  effect, 
are  all  measurably  true  with  regard  to  the  popular  rever- 
ence for  the  Constitution,  as  a  system  of  general  govern- 
ment. The  details  of  the  written  Constitution  have,  how- 
ever, always  been  pretty  freely  criticised.     Considering  the 


THEORY  OF   OUR   NATIONAL  EXISTENCE.  95 

The  Worsliip  of  the  Constitution. 

way  in  which  its  clauses  have  been  pulled  about,  this  way 
and  that,  by  political  partisans  and  by  lawyers  contending 
over  private  interests,  it  would  be  strange  if  it  had  not 
been  blamed  as  well  as  praised. 

But,  aside  from  all  such  over-estimate  of  the  provisions 
of  the  Constitution,  it  may  be  said  that  the  German  pub- 
licist has  missed  the  very  point  of  view  which  vindicates 
his  designation  of  the  Constitution  as  an  AmeTica.n  fetish. 

The  feeling  towards  the  Constitution  which  it  is  most 
material  for  ourselves,  as  Americans,  to  understand,  is  not, 
as  he  has  presented  it,  like  the  complacency  of  the  artist 
for  his  own  work  in  statuary  or  painting.  To  be  sure.  Dr. 
Von  Hoist  had  not,  when  he  wrote  his  first  volume,  the 
light  which  has  since  been  afforded  by  some  of  those  utter- 
ances from  high  places  which  have  been  cited  in  the  pre- 
ceding chapters.  We  can  now  see  that  the  feeling  is  akin 
to  that  in  the  Guinea  negro's  ascription  to  the  toy  he  has 
himself  made,  from  sticks,  rags,  and  feathers,  of  the  divinity 
of  uncreated  essence,  and  of  power  in  respect  to  which  he, 
who  patched  the  pieces  together,  is  a  helpless  slave.  The 
Constitution,  having  been  made,  became  the  author  of 
being  and  law  of  life  to  him  who  made  it.  The  fact  that 
there  must,  by  the  nature  of  things,  by  the  conditions  of 
all  political  existence,  always  be  a  continuing  somebody, 
or  some  continuing  somebodies,  —  some  visible,  tangible, 
breathing,  thinking,  willing,  acting  person  or  persons,  — 
to  make  it  law  for  anybody,  is  sedulously  veiled  from  the 
conscience  of  each  American.  He  must  believe  that  the 
Constitution  came,  —  from  heaven  or  from  hell,  it  matters 
not ;  but  came,  —  and  that  we  all  are  what  we  are  by  it, 
and  without  it  would  be  nowhere.^ 

What  is  this  but  a  fetish  ? 

1  The  reader  might  recall  expressions  like  this,  "  We  have  aright  to  claim 
and  we  do  claim  that  the  Constitution  has  done  its  work,  it  has  made  a  na- 
tion."    North  American  Review,  October,  1876,  vol.  123,  p.  361. 

"  It  [the  Constitution]  creates  a  state  formed  by  a  league,"  &c.     Wool- 


96  SOVEREIGNTY   AND   COXSTITUTION. 

The  Kelation  between  Sovereignty  and  Law. 

That  the  existence  of  this  feeling  should  be  unnoticed 
by  ourselves  is  largely  due  to  the  prevalence  of  notions  as 
to  the  relation  between  sovereignty  and  law  in  which  even 
Dr.  Von  Hoist  might  be  thought  to  participate.  After  re- 
ferring to  the  Compromise  Measures  of  1833,  as  a  victory 
for  Calhoun  and  the  Southern  State-rights  partisans,  he  con- 
cludes his  first  volume  of  the  English  translation  (p.  505) 
with  this  comment,  — 

"  It  was  a  terrible  victory  ;  the  vanquished  have  been  terribly 
scourged  for  the  defeat  suffered  through  theh'  sin,  and  the  victors 
have  been  shattered  to  pieces  by  the  result  of  the  accursed  victory. 
But  conquered  and  conquerors  brought  down  punishment  upon 
themselves,  because  they  did  not  understand  one  thing,  or,  if  they 
understood  it,  would  not  live  up  to  it,  — '  Sovereignty  can  only  be  a 
unit,  —  and  it  must  remain  a  unit,  —  the  sovereignty  of  law.'  " 

To  this  oracular  sounding  utterance,  the  reference,  in 
foot-note,  is  "  Bismark,  May  14, 1872.  Held  ;  Die  Verfas- 
sung  des  Deutschen  Reiches,  p.  19." 

It  might  be  suspected  that  the  learned  German  himself 
is  not  beyond  the  charm  of  "  glittering  generalities  "  like 
those  statements  of  doctrine  in  the  Declaration  of  Indepen- 
dence which  Mr.  Rufus  Choate,  in  his  letter  to  the  Maine 

sey,  Pol.  Science,  ii.  p.  249.  "  As  if  there  were  not  something  higher 
and  greater  tlian  the  separate  States  created  by  the  Constitution."  lb.  p. 
251. 

There  may  be  an  idiosyncrasy  in  Americans  to  look  about  for  the  ulti- 
mate source  of  power  in  some  document.  Only  by  tliis  could  one  explain 
Mr.  B.  T.  Johnson's  spreading  out  the  Constitution,  &c.,  of  tlie  Confederate 
States  in  an  appendix  to  his  volume  of  Chase's  Decisions,  "  in  order,"  as  he 
says  in  liis  preface,  "  that  it  may  be  seen  what  force,"  &c. 

That  is,  —  seen  how  the  cart  would  draw  the  horse. 

But  Story's  argument,  Comm.  Book  III.,  ch.  3,  is  no  better  ;  being  that 
when  the  document  is  named  "  constitution  "  there  is  no  need  of  looking  for 
authority,  §§  3o8-346.  Mr.  Webster  began  his  argument,  Feb.  16,  1833, 
on  Mr.  Calhoun's  resolutions,  with  this  idea,  —  "  lie  cannot  open  tlie  book 
and  look  upon  our  written  frame  of  government  without  seeing  that  it  is 
called  a  constitution.  This  may  well  be  ai)palling  to  him."  Webster's  Works, 
iii.  452. 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  97 

The  Phrase  —  Sovereignty  of  Law. 

Whigs,  April  9,  1856,  designated  by  this  epithet,^  in  the 
propriety  of  which  Von  Hoist  himself  agrees. 

We  cannot  pretend  to  know  what  a  Chancellor-Prince- 
Professor,  wielding  the  army  of  a  new  empire,  understands 
by  sovereignty  of  law.  On  the  lips  of  a  private  jurist,  it  is 
nonsense  ;  but  also  actively  pernicious  nonsense.  Perhaps 
Dr.  Von  Hoist  would  ascribe  to  the  Constitution  of  the 
German  Empire  that  very  same  uncreated  essence  and 
supernatural  force,  for  Germans,  which  Americans  find 
for  themselves  in  their  Constitution.  If  so,  the  great 
American  fetish  may  have  a  rival. 

The  phrase  —  sovereignty  of  law  —  accepted  with  ap- 
proval, apparently,^  by  Von  Hoist,  is  one  which,  with  others 
employed  in  a  certain  school  of  politics,^  has  helped  to 
generate  and  foster  the  idea  which  is  developed  in  these 
opinions  of  the  Court,  —  that  constitutions  of  government 
can,  as  law,  produce,  sustain,  and  regulate  sovereigns.^ 
Sovereignty  cannot  be  an  attribute  of  law ;  because,  by 
the  nature  of  things,  law  must  proceed  from  sovereignty. 


1  Life  of  Rufus  Choate,  2d  ed.  p.  306.  "  The  glittering  and  sounding  gener- 
alities of  natural  right  whicli  make  up  the  Declaration  of  Independence." 
"Von  Hoist,  vol.  i.  p.  31,  note,  ascribes  the  first  use  of  this  designation  to 
"  Calhoun,  with  an  acuteness  very  wounding  to  Americans." 

^  That  is,  assuming,  as  his  English-speaking  readers  must,  that  the  author- 
ized translation  conveys  the  idea  expressed  by  the  original  in  the  sentence 
quoted  as  of  Bismark.  Die  Souveranetat  kann  nur  eine  einheitliche  sein, 
und  eie  muss  eine  einheitliche  bleiben,  die  Souveranetat  der  Gesetzgebung. 
But  if  the  last  word,  Gesetzgebung  should  be  translated  Jaw-giving,  the 
sovcreigntij  of  law-giving,  of  legislative  faculti/,  the  author's  meaning  may  be 
something  quite  different ;  as,  that  sovereignty  from  which  all  law  derives  its 
authoritt],  the  very  reverse  of  the  idea  which  seems  intended  by  tlie  phrase 
in  the  English  version  of  Von  Hoist's  work.  If  this  is  the  case,  it  illustrates 
how  vaguely  words  are  employed  in  the  discussion  of  these  subjects,  in  the 
English  language. 

•*  Compare  Professor  Draper's  "  Civil  War  in  America,"  vol.  iii.  ch.  95. 

*  Story,  Comm.,  §  340,  in  his  argument  on  constitutions,  bases  it  on  this 
falsity,  citing  from  Federalist,  No.  33  (Hamilton),  "A  law,  by  the  very  mean- 
ing of  the  term,  includes  supremacy,"  which  is  a  contradiction  in  terms  as  ex 
eluding  the  supremacy  of  some  existing  sovereign  to  make  it  law. 


98  SOVEREIGNTY  AND   CONSTITUTION. 

The  Question  of  Sovereignty  —  a  Question  of  Fact. 

By  the  pre-existence  of  a  sovereignty,  law  becomes  possi- 
ble ;  or,  law  exists  in  the  exercise  of  sovereignty.  The 
question  is,  in  its  nature,  not  a  question  of  law  at  all : 
it  is  one  of  fact.  It  is  such  in  every  country,  —  neither 
of  law,  nor  of  doctrine,  nor  of  natural  right.  It  is  the 
question  of  fact  to  be  settled  before  there  can  be  any 
courts  of  law  to  sit  in  judgment  about  treason,  or  about 
any  other  wickedness. 

And  the  fact  is  one  which  each  individual,  whether 
called  subject  or  citizen,  is  always  supposed  to  know  at 
his  own  peril ;  when  the  imminent  question  is  put  to  him 
by  each  of  two  opposed  armies  :  "  Under  which  king, 
Bezonian  ?  Speak  or  die  !  "  or  when  he  must  ask  himself 
in  plain  prose :  Which  of  two  claimants  of  power  beyond 
law  will  be  the  one  who,  if  I  side  with  the  other,  will,  or 
can,  by  his  courts  and  sheriffs,  hang  me,  confiscate  my 
estate,  and  brand  my  memory  with  the  name  of  traitor? 

To  give  the  answer  is,  —  to  give  the  Constitution  ;  that 
is,  to  recognize  a  sovereign.  But  for  the  possession  of 
sovereignty  there  is  no  law.  It  is  therefore  a  question  of 
a  co7istitution  in  a  different  sense  from  that  of  any  rule, 
written  or  unwritten,  having  the  force  of  positive  law. 

It  is  a  question  of  existing  fact.  History  proves  possession, 
only  as  past  possession  may  be  assumed  to  continue.  An- 
tecedents prove  nothing,  except  as  they  may  continue. 
The  fact,  so  far  as  it  is  the  continuing  fact,  is  a  fact  in 
which  law  is  included. ^ 

1  The  fact  in  this  inquiry  is  that  certain  living  persons  have  at  some  time 
past  held  political  power.  This  has  no  connection  with  another  class  of 
facts,  —  conditions  of  topogra])hy,  climate,  soil,  &c  ,  which  may  be  thought 
by  political  economists  to  indicate  how  wide  an  extent  of  territory  might 
Lest  be  included  under  a  single  dominion.  What  has  been  called  tlie  "  scien- 
tific basis  on  whicii  our  nationality  has  rested,  and  must  rest,"  is  excluded 
from  the  question  here  considered.  I'ortions  of  Mr.  Lincoln's  Inaugural, 
and  second  Annual  Messages  (Macpherson,  Pol.  H.  107,  220)  are  occupied 
with  this  sort  of  reasoning,  which  was  also  employed  in  many  publications 
intended  to  help  the  national  cause  abroad,  at  the  outbreak  of  the  rebellion. 
Nor  has  the  fact  here  inquired  for  any  dependence  on  moral  considerations. 


THEORY  OF  OUR   NATIONAL  EXISTENCE.  99 

Doctrine  distinguished  from  History. 

From  the  nature  of  the  question,  fact  and  laiv  being 
here  coalescent,  unified,  or  identical,  it  is  difficult  to  dis- 
tinguish doctrine  from  history.  Tlie  writers  on  tlie  subject 
constantly  state  in  narrative  form  the  political  effects 
which  they  personally  ascribe  to  public  measures,  as  to  the 
mere  transaction  of  which  there  never  has  been  the  slisfht- 

o 

est  dispute. 

The  two  opposing  doctrines  have,  as  doctrine,  been 
already  stated.^  I  here  attempt  to  present  the  various 
statements  of  the  historical  facts,  wliich  had  more  or  less 
acceptance,  before  the  outbreak  of  the  rebellion,  and  up 
to  the  close  of  the  war,  and  in  the  Reconstruction  era,  as 
basis  for  one  or  the  other  doctrine. 

For  convenience  of  reference,  the  paragraphs  in  which 
different  historical  views  are  stated  are  designated  by 
the  Roman  numerals. 

I.  The  written  Constitution  of  the  United  States  had, 
very  generally,  and  independently  of  tlie  antagonism  of  two 
political  schools  or  parties,  or  of  "North"  and  "South," 
because  they  had  not  differed,  materially,  on  this  pointy 
been  received  as  the  statement  of  a  transaction  of  some 
sort  (as  to  the  true  nature  and  proper  name  of  which  there 
was  much  dispute),  before  wliich  the  several  States,  or  the 
several  politically  organized  peoples  of  each  original  State, 
possessed,  in  severalty,  all  the  powers  of  a  political  sover- 
eignty ;  each  holding  sovereignty  as  a  unit.^ 

The  maintenance  of  slavery,  or  of  polygamy,  or  of  any  social  arrangement, 
may  be  good  or  bad,  without  being  any  argument  for  the  lawfulness  or  un- 
lawfulness of  political  action. 

All  appeals  for  sympathy,  against  the  rebellion,  founded  on  these  con- 
siderations, were  suggestions  of  weakness  on  the  real  question  at  issue,  and 
injured  the  government  abroad. 

1  Ante,  p.  87,  88. 

"  This  was  often  declared  by  the  early  jurists.  See  Federalist,  No.  39, 
and  Madison's  later  writings  ;  3  Dallas,  199  ;  4  Cranch,  212 ;  19  Howard, 
602  ;  7  Cush.  275,  317  ;  9  Wheaton,  187  ;  19  Howard,  441.  It  was  equally 
assumed  by  Mr.  Calhoun  and  Mr.  Webster.  Brownson's  American  Repub- 
Uc,  195,  240. 


100  SOVEREIGNTY  AND   CONSTITUTION. 

Variations  of  tlie  Historical  Statement. 

II.  This  historical  basis  being  accepted,  the  doctrine 
which  recognized  the  States  as  the  parties  by  whose  ac- 
tion the  Constitution  was  "  adopted,"  and  which,  as  a  con- 
sequence of  this,  regarded  the  States  as  still  possessing 
full  political  sovereignty,  while  the  Constitution  was  only 
the  revocable  power  of  attorney  to  the  general  govern- 
ment organized  by  it,  is  simple.  It  is  no  wonder  that, 
from  this  characteristic  alone,  it  should  have  been  widely 
accepted,  from  the  earliest  period,  for  true  history  and 
good  doctrine.^  But  the  same  historical  basis,  in  the 
complete  sovereignty  of  the  several  original  States,  was 
accepted  also  by  a  very  large  majority,  to  say  the  least,  of 
those  who  denied,  as  matter  of  doctrine,  the  rights  of 
nullification  and  peaceable  secession. 

In  the  exposition  of  the  genesis  of  the  Constitution, 
leading  from  this  historical  basis  to  this  doctrinal  denial, 
there  may  have  been  much  diversity  among  those  who 
agreed  iii  the  final  opinion.  But  whether  the  diversity 
was  one  in  the  matter  of  history,  or  one  in  the  matter  of 
doctrine,  is  as  much  in  dispute  as  any  thing  in  the  whole 
controversy. 

III.  It  is  probable  that  by  a  very  great  majority  of  in- 
telligent citizens,  who  made  the  denial  of  the  right  of 
secession,  while  accepting  the  historical  basis  above  stated, 
the  written  Constitution  was  regarded  as  resulting  from 
the  action,  whether  called  contract  or  league  or  cession 
or  grant,  of  a  number  of  sovereign  States,  but  yet  dif- 
fering from  an  international  treaty  in  this,  that,  by  it,  the 
States  were  supposed  to  be  hound,  precisely  as  private 
persons  living  tmcler  law  are  bound  by  their  agreements  ; 
the  result  being  the  creation  of  a  government  under  power 
of  attorney,  as  by  the  other  theory,  but  that  power  being 

1  It  is  plain  that  it  was  in  this  light  that  foreign  governments,  including 
that  of  Great  Britain,  chose  to  regard  it  at  the  outbreak  of  the  rebellion. 
See  ante,  p.  56. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  101 

Variations  of  the  Historical  Statement. 

an  irrevocable  one.  The  peculiar  characteristic  of  this 
view  is,  that  the  agreement  was  supposed  to  act  on  the 
contracting  parties,  whether  called  the  States,  or  the  people 
of  the  States,  by  some  intrinsic  force  ;  there  being  no  recog- 
nition of  a  sovereign  conceived  of  as  existing  indepen- 
dently of  the  States,  as  feudal  superior  or  otherwise,  to 
whom  its  authority,  as  law  for  the  States  severally,  might 
be  ascribed.  In  this  view,  the  agreement,  having  been 
written  out,  had  been  submitted  to  the  j)arties,  —  the 
States  ;  been  voluntarily  signed  by  them,  and  stood  on 
record  ;  and  there  was  no  more  to  be  said.  It  was  an 
agreement,  and  the  States  were  bound  by  it.  It  then 
operated,  to  bind  and  to  loose,  independently  of  the  States 
or  of  any  person  or  persons  in  being,  and  the  govern- 
ment organized  in  accordance  with  its  provisions  was 
of  necessity  its  instrument,  and  therefore  had  the  right 
and  duty  to  enforce  it  against  any  particular  State  or 
States.^ 

A  position  which  might  fairly  be  thus  stated  had  un- 
doubtedly been  long  held  by  many  persons  eminent  for 
public  services  and  legal  attainment.  But  there  were 
probably  more,  and  equally  respectable,  among  those  who, 
while  they  repudiated  State  secession,  accepted  the  origi- 

1  See,  for  instance,  Madison  in  a  letter  to  Rives,  Marcli  12,  1833.  Madi- 
son's Writings,  IV.  p.  289.  In  an  Address  delivered  in  Boston,  July  4, 
1862,  by  Mr.  Geo.  T.  Curtis,  it  is  said  the  people  of  each  State  executed 
"  a  cession  of  certain  sovereign  powers,  described  in  the  Constitution,  to  the 
government  which  that  Constitution  provided  to  receive  and  exercise 
them.  These  powers  being  once  absolutely  granted  by  public  instruments 
duly  executed  in  behalf  of  the  people  of  each  State,  were  thenceforth  in- 
capable of  being  resumed.  For  I  hold  that  there  is  nothing  in  the  nature  of 
political  powers  which  renders  them,  when  absolutely  ceded,  any  more 
capable  of  being  resumed  at  the  pleasure  of  the  grantors  than  a  right  of 
property  is  when  once  conveyed  by  an  absolute  deed.  In  both  cases  those 
who  receive  the  grant  hold  under  a  contract,  and  if  that  contract,  as  is  tlie 
case  with  the  Constitution,  provides  for  a  common  arbiter  to  determine  its 
meaning  and  operation,  there  is  no  resulting  riglit  in  the  parties,  from  the 
instrument  itself,  to  determine  any  question  that  arises  under  it." 


102  SOVEREIGNTY  AND   CONSTITUTION. 

Variations  of  the  Historical  Statement. 

nal  several   sovereignty  of  each  State  who  would  have 
preferred  to  say  that  — 

IV.  The  States,  originally  being  completely  and  in- 
dividually sovereign,  did  each,  in  the  adoption  of  the 
Constitution,  make  a  voluntary  cession,  or  grant,  or  sur- 
render of  a  certain  portion  of  the  powers  or  attributes  of 
sovereignty,  which  thereupon  passed,  as  by  an  interna- 
tional, political  transfer,  but  without  civic  revolution,  not 
under  law  but  as  fact,  to  a  newly  born  political  person  to 
whom  the  name  the  United  States  or,  less  formally,  the 
Union,  was  applicable  ;  which  portion  was,  thereupon, 
held,  by  such  United  States,  or  Union,  in  the  same  man- 
ner or  sense  as  the  sum  of  sovereign  powers  is  held  by 
any  independent  nation  ;  not  by  law,  but  as  fact :  while 
the  remainder  of  sovereign  powers,  not  ceded  to  such 
United  States  or  Union,  continued  to  be  held,  by  the  sev- 
eral States,  in  the  same  manner  and  sense  as  the  sum  of 
sovereign  powers  is  held  by  any  independent  nation  ;  not 
by  law,  but  as  fact.^ 

V.  There  was  a  modification  of  this  view  which  some 
may  regard  as  consisting  only  in  a  verbal  distinction,  but 
which  others  may  consider  as  involving  a  most  essential 
difference  by  the  use  of  one  word.  By  this  view,  the  grant 
of  power  was  of  the  same  nature  as  that  last  described  ; 
but  the  grantee  and  resulting  holder  was  the  government 
instituted  in  the  act  of  grant,  —  the  persons  exercising 
the  executive,  legislative,  and  judicial  functions,  as  pro- 


1  Taney,  Ch.  J.,  19  Howard,  441 ;  Gibbons  v.  Ogden,  9  Wheaton,  187. 
Tills  is  apparently  the  view  which  DeTocqueville  received. 

Wooisey's  Pol.  Science,  I.  p.  141,  spealts  of  the  United  States  as  some- 
thing existing  or  being  sovereign  without  reference  to  the  "  States  which 
compose  tlie  Union."  "  Thus  we  often  have  to  say,  '  the  general  govern- 
ment,' as  if  it  were  the  United  States,  thus  exalting  the  organ,  tlie  adminis- 
tration, or  the  law-making  and  the  executive  powers,  above  their  true  place, 
and,  on  the  otlier  hand,  giving  the  impression  tliat  there  is  no  State  besides 
tliose  States  which  compose  the  Union." 


THEORY   OF   OUR    NATIONAL  EXISTENCE.  103 

Variations  of  the  Historical  Statement. 

vided  in  the  Constitution  ;  in  distinction  from  the  United 
States  or  the  Union,  as  such  grantee  and  resulting  holder.^ 

VI.  There  were,  probably,  others  who,  while  rejecting 
the  historical  basis  of  the  original  complete  sovereignt}^  of 
each  several  State,  yet  conceived  of  the  same  political  dis- 
tribution of  sovereign  power,  less  clearly  defined,  as  having 
occurred  at  the  earliest  moment  of  the  independence  of 
the  States  which,  having  been  dependent  colonies,  had 
been  united  in  attaining  it.^ 

VII.  There  had  been  many  also,  who,  while  they  pro- 
fessed to  accept  the  same  historical  basis  of  the  several 
sovereignty  of  the  original  States,  yet  conceived  of  some- 
thing in  the  nature  of  a  peaceful  revolution  occurring  in 
the  adoption  of  the  Constitution  in  the  conventions  of  the 
several  States,  but  in  the  ncane  only  of  the  several  States, 
wherein  a  "  people  of  the  United  States  "  came  into  being 
as  a  political  unit,  by  assuming  those  powers  of  sov- 
ereignty which  were  then  delegated  by  them  to  a  national 
government  under  the  Constitution  ;  while  the  residue  of 
powers,  not  so  assumed  and  so  delegated,  remained  as 
sovereign  powers  with  the  several  States. 

1  President  Jackson,  December,  1832.  "  The  Constitution  of  the  United 
States,  then,  forms  a  government,  and  not  a  league,  and  whetiier  formed  by 
compact  between  the  States,  or  in  any  other  manner,  its  character  is  the 
same."     Compare  also  the  language  of  Mr.  Curtis,  ante,  p.  101,  note. 

2  Tlie  language  of  Chief  Justice  Chase,  delivering  tlie  opinion  of  the  court, 
in  County  of  Lane  v.  State  of  Oregon,  7  Wall.  76,  and  to  which  he  himself 
referred  in  Texas  v.  Wiiite,  ante,  p.  12,  may  perhaps  be  regarded  as  illus- 
trating this  view.  "  The  people  of  the  United  States  constitute  one  nation, 
under  one  government,  and  this  government,  within  the  scope  of  the  powers 
with  whicli  it  is  invested,  is  supreme.  On  the  other  hand,  the  people  of  each 
State  compose  a  State  having  its  own  government,  and  endowed  with  all 
the  functions  essential  to  separate  and  independent  existence.  The  States 
disunited  might  continue  to  exist.  Without  the  States  in  Union,  there  is  no 
such  political  body  as  the  United  States.  Both  the  States  and  the  United 
States  existed  before  the  Constitution.  The  people,  through  that  instru- 
ment," &c.  (quoting  Madison  and  the  Federalist).  ..."  The  Federal  and 
State  governments  are  in  fact  but  different  agents  and  trustees  of  the  peo- 
ple ;  constituted  with  powers,  and  designated  for  ditferent  purposes." 


104  SOVEEEIGNTY  AND   CONSTITUTION. 

Two  General  Views  distinguished. 

VIII.  There  were  besides  some,  probably,  who  rejecting 
altogether,  from  their  historical  basis,  the  full  sovereignty 
of  the  original  States,  had  found  a  "  people  of  the  United 
States  "  such  as  is  discerned  in  the  view  last  stated,  com- 
ing into  being  at  the  revolution,  and,  from  that  time  for- 
ward, possessing  all  those  powers  which  were  afterwards 
entrusted  to  a  national  government  by  the  written  Con- 
stitution, as  law. 

It  can  hardly  be  expected  that  the  discriminations  I  have 
attempted  to  make  in  these  several  statements  should  be  uni- 
versall}^,  or  even  generally  accepted,  as  being  satisfactory 
in  point  of  historical  accuracy.  It  may,  however,  appear 
that  so  far  as  such,  or  very  similar,  varieties  of  opinion 
had  substantial  existence,  they  were  founded  on  two  lead- 
ing conceptions  of  the  facts,  each  supposed  to  be  incon- 
sistent with  the  claim  of  right  of  peaceable  secession  :  — 

First,  the  idea  of  an  irrevocable  grant  or  cession  by  the 
States  of  certain  of  their  sovereign  powers. 

Second,  the  idea  of  some  more  or  less  revolutionary  pro- 
ceeding, whereby  "  the  people,"  or  "  the  nation,"  as  an  ag- 
gregate of  individuals,  re-assumed  those  sovereign  powers 
which  were  by  the  Constitution  invested  in  or  intrusted  to 
the  government  organized  by  it,  while  the  residue  of  sov- 
ereign powers  continued  in  the  possession  of  the  several 
States,  or  the  people  of  those  States. 

It  may  further  appear  that  these  two  ideas,  though 
essentially  antagonistic,  were  more  or  less  combined  in 
statement,  especially  by  publicists  of  the  Madison  and 
Webster  school.^ 

1  Or  employed  separately  by  the  same  person  at  different  times.  Com- 
pare Mr.  Madison's  Letter  to  Mr.  Rives,  March  12,  1833,  Madison's  Writ- 
ings, iv.  28n,  founded  on  the  first  statement ;  and  his  letter  to  Mr.  Web- 
ster, March  15,  1883,  ib.  293,  founded  on  tlie  second. 

As  iUustrating  a  popular  statement  of  this  sort,  —  Worcester's  Diet.  4to, 
voc. ;  " Soverei(jnt tj ,  —  the  state  or  power  of  a  sovereign  ;  supremacy  ;  supreme 
power  or  rule.     In  the  United  States,  the  absolute  sovereignty  of  the  nation 


THEOEY   OF   OUR   NATIONAL   EXISTENCE.  105 

New  Elements  in  the  Question. 

It  would  be  obviously  impossible  to  present  any 
adequate  citation  of  the  earlier  opinions  supporting 
these  different  statements,  classified  with  regard  to  their 
separate  claims  to  respect,  or  as  authorities  in  any  de- 
gree. 

Indeed,  so  far  as  the  location  of  sovereignty  is  still  a 
question  for  ordinary  historical  research,  it  seems  that,  as 
opinions  have  differed  for  the  last  hundred  years,  there 
can  be  no  reason  why  the  same  difference  should  not 
exist  for  another  century,  or  longer,  being  a  matter  on 
which  anybody  and  everybody  may  have  their  several 
opinion. 

But,  as  far  as  courts  holding  the  judicial  power  of  the 
general  government  are  concerned,  the  older  method  — 
of  looking  for  the  location  of  sovereign  power  by  the  light 
of  the  earlier  opinions  or  authorities  —  has  been  super- 
seded by  new  elements  in  the  present  circumstances  of 
judicial  determination. 

For,  if  the  attempted  secession  of  a  State,  or  of  a  num- 
ber of  States,  could  rightfully,  lawfully,  or  consistently, 
be  resisted  b}^  the  military  strength  of  the  constitutional 
government  only  on  an  assertion  of  the  location  of  sov- 
ereign power  resting  on  a  particular  historical  basis,  —  it 
follows  that  the  juridical  exposition  of  tlie  rights  and  obli- 
gations of  private  persons,  arising  out  of  the  event,  must 
also  be  founded,  by  the  courts  identified  with  the  govern- 
ment which  exercised  that  military  power,  upon  the  same 
historical  basis. 

However  essential,  or  otherwise,  may  be  the  differences 
among  those  several  statements  of  the  origin  of  the  Constitu- 
tion which  have  here  been  presented  as  all  equally  supposed 
to  be  inconsistent  with  the  right  of  peaceable  secession,  it 

is  in  the  people  of  the  nation,  and  the  residuary  sovereignty  of  eacli  State 
not  granted  to  any  of  its  public  functionaries,  is  in  the  people  of  the  State. 
Story,  Bouvier." 


106  SOVEREIGNTY   AND   CONSTITUTION. 

Sovereignty  is  Indivisible. 

is  to  be  noticed  that  they  all  involve  the  divisibility  of 
sovereign  powers. 

This  divisibility  of  sovereignty,  or  of  the  powers  of  which 
it  consists,  has  been  held,  more  or  less  distinctly,  by  many 
American  publicists  ;  ^  and  appears  to  have  been  accepted 
by  DeTocqueville,  as  illustrated  in  the  case  of  the  United 
States.^ 

But  whatever  I  may  think  of  the  phrase  sovereignty  of 
Imv,  I  should  still  be  ready  to  accept,  as  true,  the  first  part 
of  the  proposition  in  which  it  is  employed  in  the  sen- 
tence cited  by  Von  Hoist,  —  sovereignty  can  only  he  a  unit, 
and  must  continue  a  unit;  that  is,  as  meaning  —  that  those 
powers  in  the  sum  of  which  sovereignty  consists,  and 
which,  by  their  nature  as  sovereign  jDOwers,  are  held, 
not  under  law,  but  as  fact,  cannot  be  so  held  (i.  e.,  not 
under  law,  but  as  fact),  in  separate  portions,  by  distinct 
and  mutually  independent  personalities.^ 

And  further  I  recognize  the  truth  of  that  which  Von 
Hoist  has  stated,  somewhat  obscurely,  in  the  passage 
already  cited,  that  the  ignorance,  or  want  of  consciousness, 
on  the  part  of  the  American  people,  on  this  single  point 

1  Mr.  G.  T.  Curtis,  in  "  A  Discourse  on  the  Nature  of  tlie  American  Union," 
&c.,  p.  9,  note,  speaks  of  it  as  "  an  American  discovery."  Judge  Cooley's 
statement,  in  Constitutional  Limitations,  p.  2,  is,  —  "  In  American  Constitu- 
tional law,  liowever,  there  is  a  division  of  the  powers  of  sovereignty  between 
the  National  and  State  governments  by  subjects  ;  the  former  being  possessed 
of  supreme,  absolute,  and  uncontrollable  jiower  over  certain  subjects 
throughout  all  the  States  and  territories,  while  the  States  have  the  like 
complete  power,  within  tlieir  respective  territorial  limits,  over  other  sub- 
jects." Cites  McLean,  J.,  in  License  Cases,  5  Howard,  588 ;  also  Taney, 
Ch.  J.,  in  Ableman  v.  Booth,  21  Howard,  516.  This  question  will  be  more 
fully  considered  hereafter,  in  Chap.  VII. 

'■^  Democracy  in  America,  Vol.  i.  p.  154,  "  The  sovereignty  of  the  United 
States  is  shared  between  the  Union  and  the  States." 

2  That  sovereignty  is  indivisible.  Lieber's  Pol.  Ethics,  i.  p.  252;  Brown- 
son's  American  Republic,  iy2-l'.HJ ;  Jameson's  Constitutional  Convention, 
p.  2.  The  indivisibility  of  sovereignty  was  an  a.xiom  with  the  Southern 
statesmen.  See  Calhoun's  Works,  i.  pp.  122, 140 ;  A.  H.  Stephens's  History 
of  the  War  between  the  States,  ii.  p.  23. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  107 

Alternative  for  tlie  Judiciary. 

was  the  cause  of  the  civil  war,^  —  the  causa  sine  qua  non  ; 
and  hold  further,  that,  so  far  as  the  war,  as  fact,  settled 
any  thing,  it  was,  —  that  sovereignty  is  indivisible. 

For  this  reason,  I  here  assume  that  each  and  all  of  the 
historical  statements  above  referred  to  are  now  all  equally 
excluded  from  judicial  consideration  ;  whatever  may  be 
the  support  found  for  them  in  previous  decisions  and 
opinions. 

For  the  same  reason  I  here  assume  that  the  written 
constitution  must  now  be  taken  to  derive  its  force  as 
law  either  from  a  number  of  political  personalities,  each 
severally  possessing  (not  under  law,  but  as  fact)  all 
sovereignty  as  a  unit ;  or  from  some  one  political  per- 
sonality, or  one  aggregate  of  jjolitical  personalities,  pos- 
sessing (not  under  law,  but  as  fact)  all  sovereignty  as  a 
unit. 

The  States-rights  doctrine,  involving  the  right  of  peace- 
able secession,  was  asserted  upon  the  first  alternative,  as 
being  the  historical  fact.^ 

Unless,  therefore,  the  States-rights  doctrine  can  be  re- 
futed on  this  basis,  the  courts,  holding  the  judicial  power 
of  the  United  States  government,  are  shut  up  to  this  alter- 
native, —  either  to  recognize  in  the  history  of  the  past, 
continuing  to  the  present  moment,  some  one  personality, 
or  one  aggregate  of  personalities,  holding  sovereignty  as  a 
unit;  or  to  accept  secession,  as  a  right, before  1861,  and  the 
whole  action  of  the  government,  since  that  date,  as  usurpa- 
tion, now  legal  and  constitutional  only  as  by  successful 
revolution. 

There  may  be  many  who  will  say  that  the  personality 
holding  sovereignty  as  a  unit  was  recognized  long  ago,  or 
that  noiv,  at  any  rate,  the  national  judiciary  must  be  un- 

1  See  ante,  p.  96. 

^  Baldwin's  Constitutional  Views,  passim;  Calhoun's  Works,  i.  IGl ;  ii. 
2G2 ;  iii.  14'J  ;  A.  H.  Stephens's  History,  &c.,  Vol.  ii.  p.  33. 


108  SOVEREIGNTY  AXD    CONSTITUTION. 

A  Sovereign  as  found  in  the  People. 

derstood  as  having  accepted  a  view  distinct  from  either  of 
the  two  general  conceptions  of  the  facts  hereinbefore 
given  on  page  104,  involving  divisibility  of  sovereignty ; 
or,  more  specifically,  from  any  one  of  those  several  preced- 
ing statements  which  might  be  classed  under  one  or  the 
other  of  those  general  conceptions. 

IX.  There  may  be  instances  in  recent  opinions,  some 
of  which  have  herein  been  cited,  to  say  nothing  of  any 
before  the  war,  in  which  the  authority  of  the  written  Con- 
stitution, not  merely  as  law  for  the  organized  national  gov- 
ernment, and  for  the  inhabitants  of  the  country,  individu- 
ally, in  their  relations  with  that  government,  but  as  Imv  of 
existence  and  obedience  for  the  States  in  their  political  capa- 
city/, is  ascribed  to  the  nation,  or  to  the  people,  as  one  homo- 
geneous political  personality  holding  all  sovereignty  as  a 
unit,  in  distinction  from  the  organized  political  people  of 
the  several  States. 

It  will  probably  be  held  also  that,  so  far  as  the  existence 
of  such  a  nation  or  people  has  been  maintained  by  the 
Supreme  Court,  it  has  hitherto  been  recognized  by  its 
several  members  as  of  their  own  personal  knowledge  of 
the  history  of  the  last  century,  confirmed  by  the  earlier 
opinions  of  the  court  ^  and  the  statements  of  a  succession 
of  jurists,  as  having  continued  from  the  adoption  of  the 
Constitution,  or  from  that  of  the  Articles  of  Confederation, 
or  even  from  the  time  of  the  separation  of  the  colonies 
from  the  British  Empire. 

It  may  be  fair  to  assume  that,  in  the  view  of  any 
American  tribunal,  the  most  extended  and  strongest  juris- 
tical array  of  authority  supporting  this  position,  as  his- 

^  The  earliest  statement  which  may  be  so  construed  is,  probably,  by 
Jay,  Ch.  J.,  in  Chishohn  v.  Georgia,  2  Dallas,  470.  "  The  i)eopIe,  in 
their  collective  capacity,  established  the  present  Constitution."  Cooley, 
Constitutional  Limitations,  5,  note,  citing  the  passage  containing  this, 
adds  that  this  point  is  forcibly  put  and  elaborated  in  Texas  v.  White,  7 
Wall.  724.    On  this  see  also  Pomeroy,  Const.  Law,  3d  ed.  §  762. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  109 

Story's  Array  of  Testimony. 

torical,  has  been  tliat  collected  by  Judge  Story  in  his  Com- 
mentaries.    Book  III.  Ch.  3.1 

But  the  value,  as  testimony,  of  any  such  earlier  recog- 
nitions of  the  people,  as  a  personality  holding  all  sovereignty 
as  a  unit,  may  be  learned  quite  as  much  from  what  the 
distinguished  jurists  and  statesmen,  there  cited,*  did  not 
show,  as  from  their  several,  often  inharmonious,  afHrma- 
tions.^ 

Even  from  the  elaborate  argument  made  by  Judge 
Story,  attributing  the  Constitution  to  the  will  of  the  people, 
as  distinguished  from  the  will  of  the  States,  it  can  only  be 
conjectured  whether  he  himself  understood  the  words  "we, 
the  people,"  in  the  written  Constitution,  as  meaning  the 
inhabitants  of  the  country,  as  one  mass  of  population ;  or 
the  people,  —  as  the  aggregate  of  the  several  masses  of 
population  in  each  State,  each  regarded,  without  reference 
to  internal  political  organization,  as  a  severally  willing 
and  consenting  constituent  by  the  voice  of  the  majority ; 
or  the  people,  as  the  aggregate  of  the  several  bodies  of 
voters  in  each  State  ;  each  constituting  a  severally  will- 
ing and  consenting  corporate  body,  under  their  several 
organic  laws.^ 

^  I  here  take  for  granted  that  those  who  would  support  this  position 
would  cite  Story  as  chief  authority  ;  judging  only  from  the  reference  so 
generally  made  of  late  in  political  discussion.  I  here  allow,  for  purpose  of 
argument,  that  Story  took  this  view.  I  do  not  undertake  to  say  whether 
he  did,  or  only  that  view  which  I  have  tried  to  describe  in  paragraph  VII.  or 
paragraph  VIII. 

2  The  same  inference  against  their  statements  applies  to  the  same 
authorities,  so  far  as  they  recognized  "  the  people  "  as  holding  only  tliose 
powers  of  sovereignty  which  were  to  be  exercised  by  the  national  govern- 
ment according  to  paragraph  VII.  or  VIII. 

2  The  argument  from  the  use  of  the  word  "  people  "  in  the  Constitution, 
illustrates  the  mistake  [denied  by  Pomeroy,  Const.  L  §  181]  in  looking  at 
the  question  from  the  lawyer's  point  of  view  ;  that  is,  starting  with  a  docu- 
ment to  be  interpreted;  as  by  Story  (see  Comm.  §  365),  and,  as  was  illus- 
trated by  Mr.  Webster,  replying  to  Hayne :  —  "  Here  is  a  law,  then,  which  is 
declared  to  be  supreme ;  and  here  is  a  power  established,  which  is  to  inter- 
pret that  law.    Now,  Sir,  how  does  the  gentleman  meet  this  ?     Suppose  the 


110  SOVEREIGNTY  AND   CONSTITUTION. 

1 • 

The  Failure  in  the  Authorities. 

However  numerous  or  iudividually  positive  may  have 
been  those  advancing  this  doctrine  of  sovereignty  in  the 
nation  or  "  the  people,"  it  is  to  be  noticed  that  no  one  had 
ever  pretended  to  specify  a  time  in  the  history  of  the 
country  when  political  power  was  visibly  exercised  by  any 
persons  other  than  those  personally  delegated  by  the 
organized  political  people  of  the  several  States  ;  ^  that  is, 
delegated  in  some  election,  by  some  certain  known  natural 
persons,  who  could  be  individually  discriminated  from  the 
mass  of  the  inhabitants,  as  having  the  elective  franchise  in 
and  for  their  respective  States,  and  having  it  only  because 
it  had  been  conferred  on  them  by  such  State,  or  by  the 
body  of  voters  in  their  corporate  capacity,  and  as  by  the 
right  or  power  of  that  capacity. 

No  one  disputed  that  the  governments  which  succeeded 
the  colonial  were  established  by  the  will  of  the  electors  or 
freemen  of  the  colonies,  and  that  no  such  exercise  of  the 

Constitution  to  be  a  compact,  yet  here  are  its  terms  ;  and  how  does  the 
gentleman  get  rid  of  them  1  He  cannot  argue  the  seal  off  the.  bond,  nor 
the  words  out  of  the  instrument.  Here  they  are,  what  answer  does  he 
give  them  ?  .  .  .  I  show  him  the  grant.  I  turn  him  to  tlie  very  words.  I 
show  him  that  the  laws  of  Congress  are  made  supreme,"  &c.  Webster's 
Works,  iii.  345.  The  question  is  not  of  interpretation  of  the  word  people,  as 
a  legal  question.  It  is  to  identify  those  who  used  the  pronoun  we,  as  a 
political  question.  All  the  interpretations  cited  by  Story  are  as  nothing 
against  the  simple  foct  that  the  Constitution  was  accepted  by  the  majority 
vote  of  the  legal  voters  in  each  State.  Those  interpretations  appear  to  have 
originated  in  the  apprehensions  of  those  who  wished  to  have  the  States 
plainly  declared  independent  confederating  parties.  See  Story's  Comm. 
§  358,  and  note  of  original  authorities.  Mr.  Madison,  who  has  been  con- 
stantly cited  of  late  as  sustaining  that  interpretation,  did  not  rest  on  this 
word  at  all.     See  Brownson's  Am.  Rep.  p.  224. 

1  That  is,  by  the  electoral  people  in  each  State,  represented  in  convention 
as  the  political  i)eople  in  such  State.  There  is  no  foundation  in  any  tlieory, 
or  by  any  argument,  nor  in  intelligent  conception,  for  the  assertion  tliat,  in 
such  convention,  it  is  not  they  who  act,  exercising  their  own  volition,  as 
such  political  people,  but  an  entirely  different  personality,  of  which  thej',  as 
individuals,  are  only  a  fractional  part;  that  is,  a  mass  of  people  within 
certain  geographical  limits,  without  regard  to  political  organization,  cor- 
porate existence,  and  personal  franchise ;  an  idea  recently  taken  up  and 
enlarged  by  Judge  Jameson  and  by  Professor  Pomeroy. 


THEORY   OP   OUR   NATIONAL    EXISTENCE.  Ill 

The  Failure  in  tlie  Authorities. 

will  of  the  mass  of  the  inhabitants,  even  of  a  single 
colony,  much  less  of  all,  as  one  nation,  ever  established 
those  freemen  or  electors  as  the  representatives  of  the 
mass. 

No  one  disputed  that  the  Constitution  of  the  United 
States  became  law  only  after  the  politically  organized 
people  of  the  States  voted  for  it  in  their  respective  States, 
according  to  their  own  State  laws  determining  the  indi- 
vidual voters.^ 

No  one  had  told  of  a  time  when  the  inhabitants,  indis- 
criminately and  without  regard  to  these  State  laws,  made 


1  1  Kent,  225:  —  "The  plan  was  submitted  to  a  convention  of  delegates, 
chosen  by  the  people  at  large  in  each  State,  for  assent  and  ratification." 
"  People  at  large  ;  "  this  is  a  false  term  of  description  for  designating  those 
who,  in  each  State,  then  held  the  elective  franchise  and  who  alone  voted.  The 
people  at  large  in  each  State,  meaning  the  whole  mass  of  inhabitants  in  each 
State,  did  not  choose  the  delegates.  "  Such  a  measure  was  laying  the  founda- 
tions of  the  fabric  of  our  national  policy  where  alone  they  ought  to  be  laid,  — 
on  the  broad  consent  of  the  people."  This  is  true  only  on  the  supposition  that 
the  voters  in  each  State,  deriving  their  franchise  from  the  State  as  an 
existing  political  being,  constituted  "  the  people  "  who  could  give  a  "  broad 
consent." 

"It  is  true  that  the  consent  of  the  people  was  given  by  the  inhabitants 
voting  in  each  State  ;  "  this,  again,  is  untruth.  "  The  inhabitants,"  generally, 
did  not  vote  ;  only  a  small  portion  of  the  inhabitants  ;  "  but  in  what  conceiv- 
able vvay  could  the  people  of  the  whole  country  have  voted  ?  '  They 
assembled  in  the  several  States,'  said  Story,  '  but  where  else  could  they 
assemble  ? '  "  Nobody  is  called  upon  to  show  where  or  Jiow  they  could.  It 
was  for  Story  and  Kent  to  show  that  tlwij  did.  Those  who  make  the  asser- 
tion are  bound  to  show  how  "  the  people  of  the  whole  country  "  could  be 
doing  any  thing,  because  certain  persons,  who  were  not  "  the  people  of  the 
whole  country  "  (unless  the  voters  in  each  State  were  "the  people  of  the 
whole  country  "),  were  doing  something.  From  our  implicit  faith  in  the  hon- 
esty and  patriotism  of  these  jurists,  we  have  been  accustomed  to  read 
their  statements  of  history  without  reflection,  and  it  may  be  believed  that 
they  themselves,  under  truest  patriotic  feeling,  really  thought  that  this  was 
reasoning,  and  not  a  recklessness  of  statement  which  would  not  be  tolerated 
in  ordinary  matters  and  from  ordinary  men.  The  whole  of  this  argumenta- 
tive presentment  of  the  material  facts,  whether  offered  for  argument  or  for 
history,  rests  on  the  assumption  tliat  a  certain  body  of  pennons,  who  are 
called  the  people  in  one  sense,  are  identical  with  an  entirely  dillerent  body  of 
persons,  also  called  the  people,  m  an  entirely  dilTerent  sense. 


112  SOVEKEIGNTY   AND   COXSTITUTIOX. 

The  Proper  Inference. 

known  the  Constitution  of  the  United  States  as  their 
expressed  will,  with  the  purpose  to  bind  in  union  the 
States  then  existing  or  thereafter  to  exist. 

No  one  denied  that,  if  the  written  Constitution  was  to 
be  amended,  the  organized  political  people  of  the  States, 
holding  the  franchise  of  voting  under  State  law,  would,  by 
their  legislatures  or  in  convention,  vote  in  each  State  and 
for  each  State,  as  the  people  of  those  States,  and  that 
the  people  of  the  whole  country,  as  a  mass  of  millions, 
would  have  no  more  to  do  about  it,  politically,  than  the 
inhabitants  of  Central  Asia  ;  and  could  not  have  any  thing 
to  do  about  it,  unless  by  a  revolution. 

On  this  matter,  regarded  as  a  simple  historical  fact,  there 
never  has  been,  and  is  not  now,  the  slightest  difference  of 
statement  between  the  advocates  and  the  opponents  of 
the  doctrine  of  secession.^ 

But,  in  the  mere  statement  of  these  things,  there  is 
recognition  of  the  fact  that  sovereignty,  that  is,  the 
supreme  function  in  making  law,^  had  never  been  held  by 
the  people  or  by  the  nation^  except  as  the  politically  organ- 
ized people  of  the  several  States  are  such  people  ^  or  nation  ; 
and  that  when,  as  matter  of  undisputed  fact,  the  words 
"  We,  the  people,"  &c.,  were  declared  in  the  Constitution 
by  the  majority  vote  of  each  politically  organized  electoral 
people  of  the  several  States,  they  asserted  that  theij^  being 
so  organized,  were  "  the  people  "  from  whom  the  Consti- 
tution was  to  derive  its  authority,  and  did  not  thereby 
declare  that  some  other  persons,  viz.,  the  mass  of  the  in- 
habitants, or  the  nation  without  regard  to  organization, 
were  the  persons  then  speaking  and  designating  themselves 

^  See  this  illustrated  even  by  Story  in  his  strained  interpretation  of 
Madison's  plain  language.     Comm.  §  365. 

2  "  Die  Souveranetat  der  Gesetzgebung,"  ante,  p.  97. 

3  Which  is  the  sense  in  which  Mr.  Madison  spoke  of  "  the  people." 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  113 

Tlie  Failure  of  the  Myth. 

as  those  to  whom  the  authority  of  the  Constitution  should 
be  ascribed.^ 

The  people,  or  the  nation,  holding  sovereignty,  as  dis- 
tinct from  the  States,  or  the  politically  organized  people  of 
the  States,  was,  therefore,  not  even  a  myth ;  unless  there 
can  be  a  myth  without  any  mythical  history. 

It  can  hardly  be  pretended  by  any  one,  that  all  who,  be- 
fore 1861,  denied  the  right  of  State  secession,  and  all  who, 
during  the  war,  supported  the  general  government  in  re- 
sisting the  separation  of  the  eleven  Southern  States  from 
the  Union,  must  have  recognized  such  an  investiture  of 
sovereignty  in  the  nation  or  the  people,  independently  of 
any  organization  of  the  States,  or  of  the  political  people 
of  the  several  States. 

But  there  may  be  ground  for  saying  that  some  such 
assertion  of  the  location  of  sovereign  power  has  been  in- 
sisted on,  towards  the  close  of  the  war  especially,  and  in 
and  since  the  reconstruction  era,^  by  a  large  proportion  of 
those  writers  and  speakers  who,  in  or  out  of  Congress, 
have  sustained  the  several  administrations  of  the  general 
government. 

Yet  those  who,  at  any  period  of  our  history,  have  been 
most  elaborate  in  their  assertions  of  such  an  origin  for  the 
Constitution,  have  never  agreed  in  distinguishing  the  per- 
sonality on  whose  will  it  is  supposed  to  rest,  except  by  such 

1  This  assumption,  about  a  matter  of  historical  fact,  is  the  corner-stone 
of  the  argument  with  the  far  greater  part  of  writers  who  have  supported  the 
policy  of  Congress  in  the  reconstruction  period,  and  had  been  that  of  all  the 
school  of  Story  and  Webster.  (Story,  Comm.  §  363.)  The  assertion  of 
the  existence  of  such  a  people,  without  the  slightest  attempt  to  explain  the 
facts  of  history,  is  the  basis  of  Mr.  Webster's  argument  in  reply  to  Hayne, 
W^ebster's  Works,  iii.  321,  322,  and  forms  the  bulk  of  his  speech  on  Mr. 
CalhoJin's  resolutions,  Feb.  16,  1833,  printed  in  same  volume,  448,  under  the 
title  The  Constitution  not  a  compact  between  sovereign  States,  which,  as  a  propo- 
sition, may  be  perfectly  true,  and  may  be  established  without  any  perver- 
sion of  the  historical  record. 

2  For  illustrations,  compare  speeches  in  Congress  collected  in  Wilson's 
History  of  Reconstruction. 


114  SOVEREIGNTY   AMD   CONSTITUTION. 

The  Ilj'pothetical  People. 

terms  as  the  union,  the  United  States,  the  nation,  the  people,  as 
being  all  equally  applicable  and  descriptive.  It  might  be 
supposed  that  the  matter  was  and  is  a  question  of  transcen- 
dental philosophy,  instead  of  one  of  fact,  to  be  settled  by 
ordinary  evidence.  For,  so  far  as  the  discrimination  of 
the  people  or  the  nation  as  a  political  entity  has  been  at- 
tempted, it  has  been  by  setting  up  a  metaphysical  hypo- 
thesis generated  out  of  the  social-compact  theory  and  the 
abstract  propositions  of  the  Declaration  of  Independence, 
which  has  gained  a  new  hold  on  the  imagination  by  a 
feeling  of  the  necessity  for  finding  some  one  personality, 
or  one  aggregate  of  personalities,  holding  sovereignty  as 
a  unit,  to  whom  the  authority  of  the  Constitution  as  law 
should  be  ascribed.^ 

It  is  by  reason  of  our  general  failure  to  discover  in  our 
history  any  such  one  political  personality,  or  one  aggregate 
of  personalities,  that  the  absurdity  that  all  political  power 
in  this  country  exists  b}^  virtue  of  a  certain  paper  docu- 
ment, either  with  or  without  a  people,  or  a  nation,  or  a 
union,  or  a  United  States,  existing  in  the  mind's  eye,  inde- 
pendently of  the  politically  organized  States,  —  the  absurd- 
ity which  had  been  cherished,  nurtured,  and  developed  in 
the  school  of  Webster  and  Story,  —  has  long  been  received 

1  I  assume,  from  the  nature  of  all  discussions  on  these  subjects,  that  I 
need  feel  no  hesitation  in  indicating  Judge  Jameson,  Judge  Cooley,  and 
Professor  Pomeroy,  as  authors  who,  as  I  understand  their  writings,  have 
recently  illustrated  this  statement.  Compare  Jameson's  Const.  Convention, 
ch.  ii.,  particularly  §  51 ;  Cooley's  Const.  Limit,  pp.  5,  6;  Pomeroy's  Const. 
Law,  §§  4-12,  which  the  author  gives  as  substantially  taken  from  Fah'k's 
Juristische  Encyclojiadie,  and  ib.  §§  36-.39.  By  citing  the  autJiority  of  Falck, 
who  was  writing,  I  suppose,  witliout  reference  to  any  particular  country, 
Mr.  Pomeroy  makes  it  more  distinct  that  he  accepts  an  liypotliesis  in  the 
place  which  a  fact  alone  is  adequate  to  fill.  If  Falck  postulates  the  pos- 
session of  sovereignty  by  every  congeries  of  tiiousands  or  millions  called  a 
nation,  as  a  fact  which  is  the  fact  at  all  times,  and  in  all  countries,  —  in  Ger- 
many, llussia,  Burmah,  America,  or  elsewhere,  —  it  is  a  fact  in  which  I  do 
not  take  tlie  slightest  interest.  If  these  writers  understand  by  sovereignty 
something  which  is  held  in  this  way,  then  the  thing  whose  possessors  in  thia 
country  I  wisli  to  ascertain  must  be  something  else. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  115 

A  Popular  Absurdity. 

as  the  only  possible  refuge  ^  from  that  doctrine  of  State 
sovereignty  which,  while  involving  the  right  of  peaceable 
secession,  was  at  least  simple,  consistent,  and  intelligible. 
And  it  is  from  the  continuance  of  the  same  general  failure 
tliat  the  same  absurdity  lias  been  put  forth  with  new  it- 
eration by  Presidents,  by  Congresses,  by  judiciaries,  and 
by  "loyal  "  people,  as  justifying  the  action  of  the  govern- 
ment in  suppressing  the  Rebellion,  and  still  reappears,  from 
time  to  time,  in  cases  before  the  Supreme  Court,  as  giving 
the  key  to  the  questions  of  law  which  have  arisen  out  of 
the  same  event. 

1  Mr.  G.  T.  Curtis,  Life  of  Webster,  i.  p.  359,  "  It  has  been  said  that  Mr. 
Webster  needed  no  preparation  to  answer  the  heresy  of  nullification.  In 
one  sense  tliis  is  true.  From  his  first  entrance  into  public  life,  he  had  been 
familiar  with  the  historical  facts  on  which  any  true  theory  respecting  the 
nature  of  the  Constitution  of  the  United  States  must  be  based.  His  opinions 
on  the  subject  had  been  formed  long  before  the  crisis  of  18o0-33  had  arisen  ; 
and.  if  it  is  to  be  suggested  that  those  opinions  were  such  as  were  usually 
held  by  the  best  minds  in  New  England,  it  is  to  be  remembered  that  they 
constitute  the  sole  ground  on  which  the  supremacy,  claimed  by  the  Consti- 
tution as  the  supreme  law  of  the  land,  can  be  maintained." 


116  INTEENATIONAL   COMPACTS. 

Contracts  under  Municipal  Law. 


CHAPTER    IV. 

The  Weakness  in  Theories  founded  on  the  several  Possession  of 
Sovereignty  bt  the  original  States.  —  Historical  Review  op 
National  and  State  Existence  from  the  Colonial  Era  to  the 
Adoption  of  the  written  Constitution. 

If  the  statement,  commonly  accepted,  of  the  independent 
existence  of  the  States,  from  the  end  of  the  colonial  period 
to  the  beginning  of  that  which  is  marked  by  the  adoption 
of  the  Constitution  ^  of  1787,  is  historically  true,  the  doc- 
trine, as  to  the  effect  of  that  transaction,  which  is  com- 
monly set  up  in  opposition  to  that  of  States-rights,  has  no 
reasonable  foundation. 

In  the  argument  to  support  that  doctrine  there  is  this 
fallacy ;  that  the  arrangement,  whether  called  contract, 
compact,  league,  grant,  or  cession,  is  placed  before  the 
mind  under  the  conditions  of  a  contract,  compact,  league, 
grant,  or  cession,  under  municipal  law.^ 

When  Doe  and  Roe  make  a  contract,  &c.,  each  is  hound 
because  he  may  be  compelled  to  fulfil  its  conditions.  But 
this  arises  from  the  circumstance  that  Doe  and  Roe  are 
not  the  only  persons  concerned  with  the  contract,  &c.,  to 
which  they  are  the  parties.  There  is  a  third,  and  very 
much  interested,  person  —  the  civil  power,  or,  in  more  plain 
and  direct  terms,  some  sovereign-power  holder,  to  whom 
they  are  both  subject,  whether  they  choose  it  or  not,  who 
gives  the  contract  its  binding  force,  by  having  the  power 
and  the  intention  to  compel  the  fulfilment  of  its  conditions. 

1  Ante,  p.  99.  I. 

2  Madison  in  his  letter  to  Rives,  Writings,  iv.  290,  —  "  It  is  asked  whether 
a  State,  by  resuming  the  sovereign  form  in  whicli  it  entered  the  union,  may 
not  of  right  witlidraw  from  it  at  will.  As  this  is  a  simple  question,  whether 
a  State  more  than  an  individual  has  a  right  to  violate  its  engagements,  it 
would  seem  that  it  miglit  be  safely  left  to  answer  itself." 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  117 

Effect  of  International  Contracts. 

Hence  it  has  legal  force,  that  is,  it  is  enforceable  at  the  will 
of  either  party  against  the  other,  without  reference  to  their 
individual  strength.  There  is  no  "  wager  of  battle,"  no 
"  appeal  to  the  supreme  arbitrament  of  war,"  &c.,  for  Doe 
against  Roe,  or  for  Roe  against  Doe.  That  may  be  a  very 
good  thing  in  itself ;  but,  as  the  case  stands,  they  simply 
must  not  do  it.  But  it  is  not  efficacious,  or  valid,  or  opera- 
tive by  moral  force  alone,  without,  that  is  to  say,  the  inter- 
ested co-operation  of  that  third  person. 

But,  when  independent  States  or  sovereigns  make  their 
contracts,  &c.,  there  is  no  such  third  person  concerned. 
There  is  no  third  will  and  force  to  coerce  either  of  the  two 
contracting  parties.  Tliere  are  only  the  two,  and  the  force 
and  will  of  the  one  and  the  force  and  will  of  the  other  are 
the  only  elements,  if  the  result  of  the  compact  is  to  be 
determined  by  force  and  will. 

In  the  case  of  the  Constitution  of  the  United  States,  the 
Government  of  the  United  States  is  not  such  a  third  per- 
son, either  as  a  whole  or  in  any  of  its  separate  function- 
aries ;  because,  under  the  assumed  condition  of  things,^  it 
is  itself  only  the  result  of  the  contract,  compact,  league, 
grant,  or  cession  ;  did  not  exist  before  it,  and  cannot  exist 
independently  of  it.  A  nation,  or  the  nation,  or  a  people, 
or  the  people,  or  something  distinct  from  the  government 
and  from  the  nation,  and  from  the  people,  and  called  The 
United  States,  is  not  such  a  third  person ;  because,  under 
the  assumed  condition  of  things,  there  was  no  political 
nation,  or  people,  and  no  such  United  States,  when  the 
contract,  &c.,  was  made,  and  there  has  been  none  since ; 
except  as  such  a  thing  exists  by  the  contract,  &c.,  as  its 
subject-matter.2 

1  The  premises  equally  accepted  by  Calhoun  and  Webster  in  1833. 
Brownson,  Am.  Rep.  195. 

2  It  is  this  which  is  the  trouble  with  Mr.  Webster's  argument.  See 
Brownson,  Am.  Rep.  192-106. 


118  IKTERNATIONAL   COMPACTS. 

Contract  of  Sovereign  States. 

In  the  case  of  Doe  and  Roe's  contract,  their  several  wills 
acted  in  its  making  only,  and  so  were  facts  on  which  the 
law,  that  is,  the  measure  of  justice  enforced  by  the  will  of 
their  political  superior,  acted  to  sustain  the  relation  between 
the  parties  according  to  the  terms  to  which  they  had  volun- 
tarily assented.  But,  in  the  case  of  treaty-compact  between 
sovereigns,  their  several  wills  must  act,  not  merely  in  its 
making,  but  to  sustain  its  continued  existence.^  The  stream 
cannot  rise  higher  than  its  source  ;  the  creature  cannot  be 
stronger  than  the  creator.  International  law  does  not  con- 
trol independent  States  as  municipal  law  controls  natural 
persons. 

If  the  Constitution  began  in  contract,  compact,  league, 
grant,  or  cession,  in  which  the  States  were  parties,  as  sev- 
erally independent  sovereigns,  the  several  will  of  each 
State  has  been  necessary  for  its  continuance,  as  far  as 
such  State  has  been  concerned,  as  much  since,  as  at  the 
moment  of  its  adoption.  Each  had  the  capacity  and  the 
right,  in  the  sense  of  capacity,  to  change  its  mind  and  repu- 
diate it  the  next  day ;  and  at  any  time  afterwards,  as  weil.^ 

1  See  Pomeroy,  Const.  Law,  p.  39,  note,  that  "this  doctrine,  that  a  sover- 
eign state  cannot  bind  itself  by  any  treaty  or  compact  by  wiiich  its  sover- 
eignty is  wholly  or  substantially  surrendered  or  lessened,  is  now  maintained 
by  the  leading  writers  on  Public  and  International  Law,"  citing  several 
European  authorities. 

In  Mr.  Webster's  argument  with  Mr.  Hayne,  after  the  passage  cited,  ante, 
p.  109,  note,  he  proceeded  to  say  of  his  opponent :  "  Instead  of  answering  this, 
he  retreats  into  the  general  reflection,  that  it  must  resulty)'om  the  nature  of 
things,  that  the  States,  being  parties,  must  judge  for  themselves."  Webster's 
Works,  iii.  345.  But  this  "  general  reflection "  —  the  aj)plication  of  an 
axiom  —  was  fully  adequate  to  overthrow  Mr.  Webster's  interpretation- 
argument  ;  that  is,  on  the  assumption,  which  he  had  accepted,  that  the 
States  had  been  severally  sovereign  before  the  adoption  of  the  Constitution. 
See  also  Brownson,  Am.  Kep.  240,  242. 

2  Brownson,  Am.  Rep.  196. 

Mr.  Pomeroy,  in  Const.  Law,  §  54,  relies  on  the  position  that  the  revolu- 
tion "left  a  united  mass,  a  political  entity,  a  nation  possessing  the  high 
attributes  of  sovereignty  which  it  had  just  exercised;  The  United  States 
was  then  a  fact,  and  no.  power  but  that  which  called  it  into  being  —  the 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  119 

The  United  States  identical  with  tlie  States  United. 

Doubtless,  there  may  be  irrevocable  transfers  of  the  pow- 
ers incidental  to  an  independent  political  body,  or  person- 
ality.^ Whether  any  can  be  truly  transferred,  unless  all  are 
transferred,  is  a  different  question.  But,  in  any  event,  the 
transfer  can  only  be  made  where  there  is  some  natural  per- 
son or  persons  in  actual  being,  who  is,  or  who  are  capable 
of  receiving  and  holding  those  powers,  as  they  had  been 
held  by  the  former  possessor.  In  the  case  of  the  Consti- 
tution, whether  called  contract,  compact,  league,  grant,  or 
cession,  there  was  no  such  person  in  being  to  take  the  pow- 
ers supposed  to  be  transferred,  and  the  officials  elected  or 
appointed  as  instruments  of  those  powers  are  not  made 
such  a  person,  by  being,  collectively,  the  government  of 
the  United  States. 

The  common  orthodoxy  may  assert  that  the  very  object, 
operation,  and  effect  of  this  transaction  (by  whatever  name 
called)  was  to  bring  into  life  and  continued  being  a  per- 
sonality thus  capable  of  receiving  the  powers  which  passed 
out  of  the  States  at  the  time,  —  a  distinct  person,  that  is, 
from  the  several  States  whose  action  made  such  person ; 
and  one  who  may  be  properly  called  the  United  States^  or 
the  Union;  although,  as  far  as  any  thing  can  be  learned 
from  the  name,  and  as  far  as  can  possibly  appear  to  the 
eyes  of  the  rest  of  the  world,  the  United  States  and  the 
several  States  united  are  identical ;  that  is,  if  the  common 
notion  is  correct,  tliat  there  can  be  no  union  except  as 
there  are  some  individuals  to  be  united. 

According  to  this  idea,  the  several  States  by  this  trans- 
People —  is  competent  to  decree  tlie  national  destruction."  And  he  frankly 
says,  ib.  §  55 :  "  Grant  that,  in  tlie  beginning,  the  several  States  were,  in 
any  true  sense,  independent  sovereignties,  and  I  see  no  escape  from  the 
extreme  positions  reached  by  Mr.  Calhoun."    See  also  ib.  §  56. 

1  Brownson,  Am.  Rep.  194.  "  Tliat  a  nation  may  volinitarily  cede  its 
sovereignty  is  frankly  admitted,  but  it  can  cede  it  only  to  something  or 
somebody  actually  existing,  for  to  cede  to  nothing  and  not  to  cede  is  one 
and  the  same  thing." 


120  DIVISION   OF  POWERS. 

How  Powers  may  be  separated  under  Law. 

action  merged  a  portion  of  themselves  into  a  common  sin- 
gle existence  ;  the  existence  called  the  Union,  or  the  United 
States.  So  that  it  would  appear  that  according  to  this 
idea,  and  strictly  speaking,  the  several  States  are  not  parts 
of  the  United  States.^ 

This  idea  involves  the  doctrine  of  the  divisibility  of 
sovereignty,  or  of  the  sum  of  sovereign  powers,  which  I 
have  herein  assumed  to  be  a  thing  impossible.^ 

In  the  case  of  natural  persons  living  under  municipal 
law,  it  is  possible  for  them  individually  to  give  up  a  por- 
tion of  the  rights,  means,  capacities,  powers,  &c.,  belonging 
to  each,  severally,  under  the  guarantees  of  such  municipal 
law,  and,  by  so  doing,  form  a  league,  association,  corpora- 
tion, or  partnership,  which  shall  exercise  the  contributed 
rights,  &c.,  of  each,  while  they,  personally,  still  continue 
mutually  independent  in  the  possession  and  exercise  of 
other  rights,  means,  capacities,  powers,  &c.,  equally  be- 
longing to  them,  severally,  under  the  guarantees  of  such 
municipal  law. 

But,  in  this  case,  the  co-operating  law,  the  will  of  the 
third  party,  the  law-giving  will  of  the  sovereign,  sustains 

1  Reading  the  liistory,  as  I  have,  I  could  not  accept  as  correct  Dr.  Wool- 
sey's  judgment,  Pol.  Science,  ii.  p.  251.  "  It  is  a  great  pity  that  the  confed- 
eration and  the  revolution  fastened  on  us  the  name  United  States,  althougii 
it  expresses  a  reality;  for  it  has  ever  been  played  false  with,  as  if  there  were 
not  sometliing  greater  and  higlier  than  the  separate  States  created  by  the 
Constitution.  And  the  word  sovereignty,  which  is  used  in  the  articles  of 
Confederation  and  in  the  Treaty  of  Peace  of  1783,  as  a  quality  pertaining  to 
the  States,  is  no  longer  applicable  to  them  within  tlie  Union,  and  is  carefully 
avoided  in  the  present  Constitution.  It  has  'paltered  with  us  in  a  double 
sense 'as  if  there  could  be  two  sovereigns,  one  without  any  international 
powers,  and  many  other  properties  essential  to  a  true  State,-  the  other  with 
these  in  full  tale."  Yet  I  accept  the  sentence  immediate!}'  preceding  this 
quotation :  "  So  that  the  United  States  are  the  only  true  State,  and  its  sov- 
ereignty the  only  true  sovereignty."  Also,  the  sentence  which  follows  the 
same  quotation :  "  It  is  a  State  formed  by  a  Union  without  merging  the 
existence  of  the  members  in  that  which  tliey  created;"  because  I  regard 
the  United  States  and  the  States  united,  as  identical. 

2  See  aide,  p.  106.     This  will  be  further  considered  in  Chapter  VII. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  121 

Possible  and  Impossible  Transfers  of  Power. 

this  division  of  these  rights,  powers,  &c.,  belonging  to  each 
individual  person  ;  and  if  a  new  being  can  be  said  to  exist, 
in  this  case,  holding  these  ceded  powers,  its  existence 
depends  upon  the  co-operating  law. 

Whenever  a  real  transfer  of  sovereign  power  may  actu- 
ally have  taken  place,  the  transaction  does  not  have  the 
nature  of  contract,  grant,  or  cession. ^  Always,  in  fact,  and 
generally,  in  appearance,  it  depends  on  force.  The  posses- 
sion of  independent  political  power  is  always  matter  of  fact, 
or  what  is  proved  by  history ;  and  never  matter  of  right,  or 
what  is  proved  by  law.  Because  it  is  itself  the  fact  upon 
which  the  law  is  dependent ;  and  contract,  grant,  or  cession 
must  be  dependent  on  law. 

If  the  several  sovereignty  of  the  States,  before  the  trans- 
action, is  assumed,  the  nature  of  the  transaction  must  be 
the  same  whether  called  contract,  or  league,  or  cession,  or 
grant,  or  any  thing  else. 

It  might  be  admitted  that  the  State  governments  had 
not  received  ft-om  the  political  people  of  the  several  States 
the  authority  to  decide  for  them,  on  the  adoption  of  the 
Constitution.  But  the  argument  for  the  indissoluble  nature 
of  the  contract,  or  irrevocable  nature  of  the  grant,  is  not 
bettered  by  regarding  it  as  the  act  of  the  people  of  each 
State,  in  distinction  from  the  State  governments  ;2  that  is, 
on  the  supposition  that  the  people  of  each  State  possessed 
independent  sovereignty,  either  as  a  mass  of  population,  or 
as  an  organic  people. 

The  tenacity  with  which  this  view  has  been  held  is  due 
to  a  lingering  faith  in  the  historic  possibility  of  a  social 
compact,  according  to  the  common  political  theory  of  the 
last  century .3     It  was  supposed  that  the  authority  of  each 

1  Phillimore,  Int.  Law,  Part  ii.  ch.  6. 

2  On  which  Mr.  Madison  and  others  have  laid  great  stress.  See  Madison's 
letter  to  Mr.  Everett,  Madison's  Writings  (Compare  Brownson,  Am.  Rep. 
231) ;  Story's  Comm.  §  362;  Webster's  Works,  iii.  346. 

3  Brownson,  Am.  Rep.  230,  239  j  Von  Hoist,  i.  30. 


122  coiNrPAnisoN  of  theories. 

Strength  of  the  State-Rights  Theory. 

State,  or  of  the  organized  political  people  of  eacli  State, 
had  actually  come  about  by  a  cession  from  each  individual 
person  of  a  portion  of  his  inlierent  personal  sovereignty.^ 
With  some,  the  idea  has  been  that  afterwards,  in  like  man- 
ner, these  States  ceded  to  the  constituted  Government,  or 
to  the  persons  called  the  Union  —  the  United  States,  a  por- 
tion of  the  sovereignty  thus  acquired ;  and  tliat,  as  natural 
persons  vrere,  by  the  theory,  bound  in  the  social  compact 
to  form  a  State,  so  the  States  are  supposed  to  be  hound,  in 
the  secondary  compact,  to  form  the  United  States.  The 
States  also  are  supposed  to  reserve  some  of  their  powers, 
as,  in  the  original  social  compact,  the  individual  man,  or 
woman,  or  child,  reserved  certain  rights.^ 

The  simple  statement  of  the  theory  ought  to  be  enough 
to  shatter  all  that  has  been  built  on  it.  It  is  an  idol  that 
has  been  ground  to  powder  so  often  that  it  seems  useless 
to  argue  about  it  now,  if  anybody  still  believes  in  it. 

The  historical  basis  of  the  original  sovereignty  of  thir- 
teen States  being  accepted,  —  those  who  in  the  name  of 
State-rights  have  maintained  the  right  of  peaceable  seces- 
sion are  fully  justified  in  charging  their  opponents  with 
offering,  in  the  place  of  argument,  nothing  better  than 
mere  assertion  of  the  indissoluble  nature  of  the  compact, 
league,  grant,  cession,  or  whatever  else  it  may  be  called. 

1  See  Preamble  to  the  Constitution  of  Massachusetts,  ascribed  to  John 
Adams.  Even  Hamilton  said:  "That  portion  of  sovereignty  to  which  each 
individual  is  entitled  can  never  be  too  liighly  prized."     Works,  ii.  p.  315. 

-  Mr.  Madison's  idea,  as  I  understand  from  his  letter  to  Mr.  Everett,  was 
that,  whocA'er  may  have  been  the  grantee,  the  grant  at  the  adoption  of  the 
Constitution  was  made  by  each  natural  person.  The  theory  being  that,  on 
that  occasion,  the  older  social  compact,  by  which  the  States  had  been  created 
at  the  Revolution,  was  dissolved ;  by  whose  consent  is  not  stated.  Each 
natural  person  recalled  his  supposed  former  grant  of  sovereign  power,  and 
made  a  new  cession ;  giving  part  to  the  United  States,  or  the  people,  or 
nation,  or  government ;  another  part  to  the  State  of  which  he  was  inhabitant, 
and  reserving  part  to  himself.  A  similar  idea  appears  in  Chief  Justice  Jay's 
opinion  in  Chisholm  v.  Georgia,  2  Dallas,  471,  cited  as  authority  in  Story's 
Comm.  §  349,  and  in  Story's  own  argument,  ib.  §  340. 


THEORY  OF   OUR   NATIONAL  EXISTENCE.  123 

Who  were  the  People,  in  the  Revolution. 

But  it  is  contrary  to  the  facts  to  suppose  that,  at  any 
time  since  the  separation  of  the  thirteen  colonies  from  the 
Empire  of  Great  Britain,  a  corresponding  number  of  States 
have  existed  in  their  phices  ;  each  possessing,  in  severalty, 
the  sum  of  sovereign  powers  belonging  to  every  indepen- 
dent state  or  nation,  and  capable  of  severally  ceding  all, 
or  a  portion  of  those  powers  to  any  person  who  might  be 
capable  of  receiving  them. 

It  is  contrary  to  the  facts  to  suppose  that  thirteen  colo- 
nial governments  acquired,  each  for  itself,  within  its  original 
jurisdiction,  any  of  those  powers  which  the  imperial  gov- 
ernment had  before  exercised  therein,  or,  generally,  that 
they  acquired  any  sovereign  rights  whatever. 

It  is  equally  contrary  to  the  facts  to  suppose  that  those 
colonies  were  resolved  into  a  mere  aggregate  of  natural 
persons,  without  political  organization,  who  then,  according 
to  some  "  law  of  nature,"  formed  themselves  by  "  social 
compact"  into  new  political  bodies. 

In  each  colony  "the  freemen"  or  electors  had  always 
had  a  primal  corporeity,  by  individually  uniting  the  com- 
mon national  character  of  British  subjects  and  the  local 
character  of  constituent  members  of  a  provincial  or  char- 
tered colony.  The  existence  of  such  a  political  people 
underlaid  all  colonial  political  action.  It  was  ordinarily 
manifested  for  municipal  and  provincial  objects,  either 
directly  or  through  elected  representatives.  But  the 
same  persons  had  always  claimed  a  right  to  act,  in  the 
same  corporeity,  for  national  objects,  as  political  members 
of  the  British  Empire.  This  claim,  in  a  variety  of  forms, 
was  the  very  basis  of  the  difficulties  with  the  British  gov- 
ernment. 

In  the  revolution,  this  claim  developed  into  that  com- 
bined action  of  the  political  peoples  of  the  several  colonies 
which  we  call  the  Revolution  ;  so  that  their  national  exis- 
tence, as  one  political  people  claiming  sovereignty,  coincided 


124  THE   POLITICAL   PEOPLE. 

A  Constitution  known  by  the  Possession  of  Power. 

with  their  several  self-government  as  States.^  Political 
independence,  or  tlie  possession  of  sovereign  power,  is  a 
fact  determined  by  manifestation  of  force  or  power  to  hold 
sovereignty,  or  to  be  independent.  There  is  no  legal  right 
in  the  matter ;  and,  if  any  moral  right  is  distinguishable, 
it  is  entirely  barren  of  political  consequences.  Here,  the 
might  makes  the  right.^  In  the  case  of  the  American  re- 
public the  force  was  in  the  national  corporeity  in  which  the 
political  people  of  each  colony  was  a  constituent.  Sever- 
all}^  the  colonies  had  no  force  adequate  to  sustain  either 
local  or  external  sovereignty  or  independence. 

It  was  the  political  peoples  of  the  colonies,  acting  in 
union  as  one  political  personality,  which,  being  the  actual 
possessor  of  the  sovereign  power  to  make  law,  did,  as  law- 
maker, determine  every  thing  which  could  be  the  object 
of  legal  knowlege,  including  the  written  constitution  itself. 
But  this  possession  of  sovereign  power  by  this  political 
people,  thus  composed,  is,  of  course,  an  object  of  political 
knowledge  as  distinguished  from  legal  knowledge,  and,  as 
such,  may  in  a  certain  sense  be  termed  the  actual  constitu- 
tion of  the  nation.^ 

1  By  the  statements  to  be  made  in  tliis  cliapter,  I  would  reject  as  utterly 
false,  the  idea  whicli  some  liave  set  up  that  tlie  political  existence  of  the  sev- 
eral States  was  usurpation  as  against  the  people  of  the  whole  thirteen  colonies 
regarded  as  a  mass  of  individuals ;  an  idea  first  broached  apparently  by 
J.  Q.  Adams :  "  Wliere  then  did  each  State  get  tiie  sovereignty,  freedom, 
and  independence  whicli  the  articles  of  confederation  declare  it  retains  1  not 
from  tlie  whole  people  of  the  whole  Union,  not  from  the  Declaration  of  Inde- 
pendence, not  from  the  people  of  the  State  itself.  It  was  assumed  by  agree- 
ment between  the  legislatures  of  the  several  States  and  their  delegates  in 
Congress,  without  authority  from,  or  consultation  with,  the  people  at  all." 
Discourse  on  the  Constitution,  p.  19.  Perhaps  Mr.  Adams  only  meant  to 
question  a  claim  of  the  organized  State  governments  to  be  the  possessors  of 
supreme  power.  Compare  Von  Hoist,  vol.  i.  p.  22,  and  the  notes.  But  the 
same  idea  of  usurpation  was  more  fully  asserted  in  the  Princeton  Keview, 
October,  1861,  by  J.  II.  Mcllvaine,  D.l).,  Professor  of  Political  Science,  cited 
by  Mr.  Pomeroy  in  his  Const.  Law,  p.  43,  with  the  remark:  "The  fore- 
going language  is  entirely  correct." 

2  Brownson,  Am.  llcp.  201. 

8  Brownson,  Am.  Rep.  218.     "The  Constitution  of  the  United  States  is 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  125 

Tlie  Political  People  not  changed  in  the  Revolution. 

But  the  integral  existence  of  the  political  people  of  each 
colony  was  not  interrupted.  It  was  this  people  of  a  colony 
or  State  which,  as  the  integer,  participated,  in  the  com- 
bined possession  of  sovereignty,  with  the  integral  people  of 
each  other  colony  or  State. 

The  individual  natural  persons  never  held  sovereign 
power.  Individual  natural  persons  never  can,  except  as  a 
corporation  sole;  like  a  king  or  absolute  monarch.  The 
local  governments  which  had  been  the  depositaries  of  the 
power  of  the  crown  as  well  as  of  that  of  the  colony,  con- 
tinued only  so  far  as  they  became  the  representative  in- 
struments of  such  a  political  people. 

The  colonial  corporeities  were  all  included  under  one 
empire,  and  the  colonists,  as  to  each  other,  were  all  of  one 
political  national  state,  over  which  all  sovereign  powers,  not 
exercised  by  the  local  governments,  if  these  governments 
had  any  that  could  be  called  such,  were  exercised  by  the 
single  undivided  authority  of  the  crown  and  parliament. 
Their  relative  position  was  not  changed  when  they  were 
jointly  separated  from  the  rest  of  the  British  Empire ; 
when  the  political  peoples  of  these  States  united  exercised 
sovereignty  as  a  unit,  by  maintaining,  in  union,  all  the 
power  before  exercised  by  the  local  governments,  and  by 
the  crown  and  parliament.^ 

twofold,  written  and  unwritten,  the  constitution  of  the  people  and  the  consti- 
tution of  the  government.  The  written  constitution  is  simply  a  law  ordained 
by  the  nation  or  people  instituting  and  organizing  the  government;  the  un- 
written constitution  is  the  real  or  actual  constitution  of  the  people  as  a  state 
or  sovereign  community,  and  constituting  them  such  or  such  a  state.  It  is 
Providential,  not  made  by  the  nation,  but  born  with  it.  The  written  consti- 
tution is  made  and  ordained  by  the  sovereign  power,  and  presupposes  that 
power  as  already  existing  and  constituted." 

^  But  I  recognize  no  histortf  in  a  statement  like  this :  "  The  States  were 
always,  in  respect  to  the  higher  powers  of  sovereignty,  subject  to  the  control 
of  a  central  power."  Cooley's  Const.  Limitations,  p.  6.  Or  like  this  :  "  The 
Congress  of  1775  assumed  those  powers  which  had  been  exercised  by  the 
crown  and  parliament"  (ib.),  if  the  meaning  is  that  the  Congress  was  a 
"  central  power,"  a  person  holding  these  powers  independently  of  the  States 
which  elected  and  sent  the  deputies  who  constituted  the  Congress.     To  be 


126  THE  POLITICAL  PEOPLE. 

Continuation  of  a  Political  People. 

When  this  occurred,  the  powers  which  before  had  been 
severally  exercised  by  the  colonial  governments  continued, 
as  a  general  rule,  to  be  severally  administered  by  new 
organs  of  the  political  people  of  each  State;  while  that 
people,  in  union  with  those  of  the  other  States,  and  by 
another  organ,  more  or  less  perfectly  adjusted  to  circum- 
stances, administered  other  powers ;  some  of  which  had, 
but  more  had  not,  been  exercised  by  the  colonial  govern- 
ments. 

Thus  the  united  political  people  of  the  colonies,  both  in 
internal  and  external  relations,  presented  themselves  with 
all  other  inhabitants  of  the  same  territory  as  a  sovereign 
nation,  —  the  United  States  of  America,  among  other 
nations. 

The  political  people  of  the  colonies  could  not  have  acted 
at  all,  or,  to  change  the  form  of  expression,  the  people  of 
the  colonies  could  not  have  acted  politically  at  all,  except 
as  they  were  already  organized  by  law.^  Their  individual 
political  capacit}^  was  not  a  quality  inherent  or  primordial, 
as  the  right  of  all  natural  persons.  The  colonists,  indi- 
vidually, had  no  political  capacity  as  a  quality  inherent  in 
each ;  either  as  the  right  of  all  natural  persons,  or  as  tlie 
right  of  all  British  subjects.  They  held  it  as  members  of 
the  corporate  bodies  which  we  call  the  States.  It  was 
therefore  the  political  peoples  of  the  several  States,  as  so 
many  integral  personalities,  who  thus,  in  union  and  not 
otherwise,  had  primordial  existence  as  an  aggregate  of 
personalities  holding  sovereignty  as  a  unit. 

It  was  then  of  necessity  that,  in  exercising  sovereign 
powers  for  national  objects,  the  political  people  should  be 
known  only  as  existing  in  those  prhnary  political  unities 

such  a  power-holder  the  characteristic  of  coiitlnuilij  must  e.xist,  whicli  docs 
exist  in  tlie  case  of  the  political  pcojjle  of  tlie  States,  but  cannot  in  the  case 
of  any  governing  body  which  depends  for  renewal  on  election  of  its  members 
by  somebody  else. 

i  Woolsey,  Pol.  Science,  §  75,  on  the  question  "  What  is  the  people  1  " 


THEORY   OF   OUH   NATIONAL   EXISTENCE.  127 

Difficulty  of  Verbal  Statement. 

which  wo  call  the  States,  identical  with  those  which,  for 
local  objects,  or  for  instituting  State  government,  exercised, 
in  severalty,  the  residue  of  sovereign  powers  belonging 
to  the  same  people.^ 

This  doctrine  as  to  the  investiture  of  sovereignty  in  the 
organic  political  people,  as  distinguished  from  the  people 
as  a  mass  of  population  without  reference  to  organization, 
has  been  thought  untenable  by  some,^  and  the  opposite  has 
been  very  decidedly  affirmed  by  several  recent  writers  on 
our  public  law  ;  some  regarding  such  organic  people  as 
only  representatives  of  the  people  considered  as  a  mass  of 
inhabitants.^ 

There  is  an  intrinsic  difficulty  in  giving  sufficiently  clear 
expression  to  any  views  on  these  political  questions,  which 
arises,  mainly,  from  the  ambiguity  of  all  words  conveying 
abstract  ideas.  Mr.  Pomeroy,  in  his  Introduction  to  the 
Constitutional  Law  of  the  United  States,  §  29,  has  done 
me  the  honor  to  mention  me  as  having,  in  a  work  published 
in  1858,  sustained,  together  with  Dr.  Brownson  and  Mr. 
George  P.  Marsh,  a  view  of  the  investiture  of  sovereignty 
in  the  "  people  of  the  United  States,"  which  he  has  fully 
stated  in  §  28  of  his  work,  and  of  which  he  says,  ib.  §  29, 
that  "  this,  in  substance,  is  the  view  of  the  Constitution 
advocated  by  Hamilton,  by  Jay,  by  Marshall,  by  Story, 

1  Brownson,  Am.  Rep.  222.  "The  States  severally  simply  continue  the 
colonial  organizations,  and  united  they  hold  the  sovereignty  that  was  origi- 
nall}'  in  tlie  mother  country.  But,  if  one  people,  they  are  one  people  exist- 
ing in  distinct  State  organizations,  as  before  Independence  they  were  one 
people  existing  in  distinct  colonial  organizations.  This  is  the  original,  the 
unwritten,  and  providential  Constitution  of  the  people  of  the  United  States." 

2  See  Jameson's  Const.  Convention,  p.  63. 

3  See,  particularly,  ante,  p.  114  note,  and  the  whole  of  Chapter  II.  of 
Jameson's  Constitutional  Convention,  as  an  elaborate  and  impartial  review 
of  opinions  on  the  question.  Pomeroy's  Const.  Law,  §  8,  says,  not  in  the 
government,  "  nor  in  the  body  of  electors  who  immediately  choose,  but  in 
the  total  aggregate  of  persons  wlio  are  members  of  the  State,  and  who,  by 
the  iiresent  constituted  order  of  things,  are  primarily  represented  by  the 
existing  body  of  electors,  and  ultimately  by  the  legislative  and  executive 
officers." 


128  THE   POLITICAL   PEOPLE. 

The  Distinction  liitherto  Neglected. 

by  Webster,  and  ui^held  by  the  judgments  of  the  Supreme 
Court  during  its  earliest  years."  I  should,  for  my  own 
part,  hesitate  to  accept  the  position  attributed  to  me,  as  I 
have  been  quite  unable  to  learn  what  view  these  eminent 
authorities  did  hold  on  this  subject.  Besides,  as  far  as  I 
understand  Professor  Pomeroy's  statement  of  this  view, 
especially  as  further  explained  in  other  parts  of  the  same 
work,  it  is  fundamentally  different  from  that  which,  I 
think,  was  very  clearly  stated  by  Dr.  Brownson,  and  cer- 
tainly does  not  at  all  correspond  with  that  which  I  had  in- 
tended to  maintain  in  the  work  referred  to  :  though  it  mav 
agree  with  that  of  Mr.  Marsh. 

It  would  appear,  however,  that  Judge  Jameson  had  not 
had  the  like  understanding  of  either  Dr.  Brownson's  lan- 
guage or  my  own.^ 

The  distinction  here  made  —  between  the  people^  as  a 
mass  of  individuals  living  in  one  national  domain,  and  the 
peo'ple^  as  those  individuals  who  visibly  act  in  corporate 
political  life,  through  constitutions  depending  on  their 
votes  —  niay  seem  to  many  persons  more  metaphysical 
than  political,  and,  at  any  rate,  without  any  practical 
consequences,  if  it  be  once  admitted  that,  in  eitlier  case, 
there  is  a  people  of  the  United  States  holding  the  total 
of  sovereign  power.  More  or  less  disagreement  on  this 
point  has  existed  from  a  very  early  period,  though  the 
distinction  may  not  have  been,  hitherto,  very  clearly 
drawn.  It  is  true  that  the  distinction  may  have  no  direct 
bearing  on  the  question  of  State  sovereignty,  as  opposed 
to  the  sovereignty  of  the  United  States.  The  advocates 
and  the  opponents  of  "State-Rights"  could  not  be  discrim- 
inated by  their  difference  on  this  subject.  The  definition 
which  Chase,  C.  J.,  in  Texas  v.  White,  ante^  p.  10,  note, 
cited  from  Penhallow  v.  Doane,  by  mistake,  as  that  of 
Paterson,  J.,  occurs  in  the  opinion  given  in  that  case  by 

1  Compare  Jameson's  Const.  Convention,  §§  60, 61. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  129 

The  Distinction  an  Important  One. 

Iredell,  J.  (of  South  Carolina),  who,  in  Chisholm  v.  Georgia, 
held  that  the  State,  as  a  sovereign,  could  not  be  sued.  It 
was  the  prevailing  doctrine  of  the  time,  together  with  that 
of  the  social  compact,  of  which,  indeed,  it  was  only  one 
form.  This  may  be  seen  by  all  the  opinions  delivered  in 
this  last-named  case,  and  especially  in  that  of  Judge  Wilson, 
which  is  one  of  the  standard  citations  for  this  idea. 

I  may,  further  on,  be  able  to  show  that  the  distinction 
has  results  of  widely-reaching  practical  importance  ;  agree- 
ing as  I  do  with  Dr.  Brownson  on  this  point,  generally,  and 
in  the  truth  of  the  following,  from  his  "  American  Repub- 
lic," p.  10:  — 

"  But  American  statesmen  have  studied  the  constitutions 
of  other  States  more  than  that  of  their  own,  and  have  suc- 
ceeded in  obscuring  the  American  system  in  the  minds  of 
the  people,  and  giving  them  in  its  place  pure  and  simple 
democracy,  which  is  its  false  development,  or  corruption. 
Under  the  influence  of  this  false  development  the  people 
were  fast  losing  sight  of  the  political  truth,  that,  though 
the  people  are  sovereign,  it  is  the  organic,  not  the  inorganic 
people,  the  territorial  people,  not  the  people  as  simple 
population,  and  were  beginning  to  assert  the  absolute  God- 
given  right  of  the  majority  to  govern.  All  the  changes 
made  in  the  bosom  of  the  States  themselves  have  consisted 
in  removing  all  obstacles  to  the  irresponsible  will  of  the 
majority,  leaving  minorities  and  individuals  at  their  mercy. 
This  tendency  to  a  centralized  democracy  had  more  to  do 
with  provoking  secession  and  rebellion  than  the  anti-slavery 
sentiments  of  the  Northern,  Central,  and  Western  States."  ^ 

I  assume  here  that  the  question  is,  of  necessity,  a  ques- 
tion of  fact :  Who  were  those  who  did  actually  exercise  the 

1  See  also  Brownson's  statement  of  the  foundation  of  the  general  doc- 
trine of  the  sovereignty  of  the  people.     Am.  Rep.  pp.  71-77. 

On  reading  Mr.  Pomeroy's  citation  of  Dr.  Brownson  as  having  concurred 
in  his  own  view,  I  must  confess  a  doubt  as  to  the  power  of  language  to,  con- 
vey ideas  on  this  subject. 


130  THE   NATURE   OF  THE   QUESTION. 

The  Question  is  one  of  Historical  Fact. 

power  ?  And  it  is  in  this  way  that  iSIadison  presented  it 
(Madison's  Writings,  iv.  203)  :  "  It  is  fortunate  when  dis- 
puted theories  can  be  decided  by  undisputed  facts.  And 
here  the  undisputed  fact  is  that  the  Constitution  was  made 
by  the  people,  but  as  embodied  into  the  several  States 
which  were  parties  to  it,  and  therefore  made  by  the  States 
in  their  highest  authoritative  capacity.  .  .  .  The  Constitu- 
tion of  the  United  States  being  established  by  a  competent 
authority,  by  that  of  the  sovereign  people  of  the  several 
States  who  were  parties  to  it,"  &c. 

This  facU  attested  by  undisputed  history,  could  not  have 
been  put  out  of  existence  by  any  ivords  in  the  articles  of 
Confederation  or  in  the  Constitution.  These  documents 
might  have  contained  express  averments  that  each  State 
was  severally  and  intrinsically  sovereign  and  independent ; 
or  others,  that  all  sovereign  power  was  vested  in  the  inhab- 
itants as  so  many  millions.  But  in  face  of  the  facts,  as 
they  actually  occurred,  these  statements  would  have  been 
empty  wind. 

American  writers  who  had  followed  Burlamaqui  and 
Vattel  in  thinking  that  they  must  refer  all  legitimate  gov- 
ernment to  a  contribution  by  each  natural  person  of  a  suffi- 
cient portion  of  his  or  her  inborn,  inherent  sovereignty, 
were  accustomed  to  find  in  the  State  governments  and  the 
general  government  the  recipients  of  this  contribution  from 
the  inhabitants  of  the  United  States.  But,  if  there  has  ever 
been  any  such  contribution  here,  the  recipient  was  the  polit- 
ical people  of  the  States,  being  united.  It  is  they  who  cor- 
respond to  the  governments  of  the  older  writers. 

This  political  people  was  the  supreme-power  holder,  by 
the  grace  of  God,  if  one  chooses  to  say  so  ;  by  the  "  provi- 
dential constitution,"  as  Mr.  Brownson  called  it ;  or  by  the 
malice  and  device  of  the  devil,  if  any  one  prefers  to  look 
that  way  for  a  beginning ;  ^  or  by  "  legitimate  usurpation," 

1  As  may  very   likely   be   the  opinion  of  some  ultra  Ultramontanists ; 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  131 

Relation  of  the  Government  to  the  Sovereign. 

as  some  might  say ;  or  simply,  as  I  say,  by  fact,  because  so 
it  was,  and  there  is  no  rubbing  it  out. 

This  people  only  delegated  its  power  to  the  govern- 
ments. State  or  national,  and  was  the  sovereign  still. 
These  governments  existed  only  by  the  continuing  will  of 
this  people. 

Prior  to  the  adoption  of  the  Constitution,  there  were 
periods  when  the  existing  governments  were  not  formall}^ 
adjusted  to  the  actual  possession  of  supreme  power.  But 
it  would  have  been  more  of  an  anomaly  if  this  had  not  oc- 
curred during  a  revolutionary  period.  The  non-existence  at 
any  particular  time  of  a  government  holding  all  the  powers 
afterwards  deemed  essential,  in  external  and  internal  rela- 
tions, for  general  or  common  interests  ;  or  the  fact  that,  at 
certain  times,  the  State  governments  were  required  to  co- 
operate in  order  that  some  of  those  powers  should  be 
exerted,  would  not  show  that  all  or  any  sovereign  power 
was  then  held,  in  severalty,  by  the  States. 

The  action  of  conventions  in  each  State  convoked  with 
special  reference  to  co-operation  in  the  formation  of  a  gen- 
eral government,  and  their  consenting  or  non-consenting  at 
certain  times,  does  not  show  that  the  States  severally  pos- 
sessed powers  which  they  could  cede  or  withhold.  Nor 
does  the  fact  that  there  were  times  when  certain  States 
had  not  co-operated  in  the  government  which  represented 
the  powers  directed  to  and  held  for  commbn  and  general 
objects,  show  that  the  people  of  those  States  were  not  then 
a  constituent  portion  of  the  political  people  of  the  United 
States. 

as  perhaps  it  was  of  Count  Joseph  De  Maistre,  author  of  the  well-known 
Essay  on  the  Generative  Principle  of  Political  Constitutions.  The  ascrip 
tion  of  the  American  Constitution  to  the  special  intervention  of  the  Deity 
has  been  very  common  in  our  legal  literature.  It  may  be  as  well  for  us  to 
remember  that  there  have  been  and  still  are  godly  people  in  the  world  who 
believe  that  all  popular  governments,  and  even  all  which  do  not  recognize 
some  royal  dynasty  by  divine  right,  are  illegitimate  and  sacrilegious. 


132  STATES   SOVEKEIGN  IN  TJlSnON. 

Majority  Rule  not  Applicable. 

The  whole  period,  until  the  full  adoption  of  the  Consti- 
tution, was  abnormal  in  the  relation  of  the  form  of  govern- 
ment to  the  possession  of  the  sovereign  power. 

In  the  adoption  of  successive  governments  for  general 
political  action,  each  State  consented  without  reference  to 
any  relation  between  a  majoi^ity  and  a  minority  of  States ; 
because  the  autonomic  action  of  the  people  of  the  United 
States  is  determined  by  the  several  wills  of  the  integral 
people  of  each  State,  and  these  several  wills  could  not  be 
controlled  by  any  rule  of  law,  being  autonomic.  The  will 
of  no  State  was  determined  by  the  action  of  a  majority  of 
all  the  States ;  yet,  except  as  one  of  the  United  States,  no 
State  had  any  such  w^ll. 

The  will  of  the  whole  number  is  known  from  the  action 
of  the  majority  only  when  the  whole  number  are  under  law. 
In  this  instance  the  whole  number,  collectively,  were  above 
law  ;  therefore,  the  majority  rule  did  not  apply.  But  this 
does  not  show  that,  as  argued  by  Madison  in  the  Federal- 
ist,^ and  by  others,  each  State  in  consenting  to  these  suc- 
cessive general  governments  was  acting  as  possessor,  in 
severalty,  of  the  sum  of  sovereign  power,  and  agreeing  for 
a  federal  agent  of  government. 

The  possession  of  sovereign  power  by  the  people  of  the 
States  only  as  associated  or  united  States  is  not  disproved 
by  the  fact  that  the  government,  under  the  Constitution 
of  1789,  went  into  operation  when  only  nine  States  had 
ratified  the  instrument.  It  cannot  be  inferred  that  one  or 
more  several  States  might,  in  accordance  with  the  then 
existing  location  of  sovereignty,  have  set  up  for  an  alien 
government.^     It  would  even  then  have  been  oidy  a  ques- 

1  Federalist,  No.  39 ;  Calhoun's  Works,  i.  p.  150,  161. 

2  Judge  Cooloy,  in  Constitutional  Limitations,  p.  9,  says :  "  Without, 
therefore,  discussing  or  even  designing  to  allude  to  any  abstract  theories  as 
to  the  precise  position  and  actual  power  of  the  several  States  at  the  time  of 
forming  the  present  constitution  (notes  tliis  as  being  discussed  in  Gibbons 
V.  Ogden,  9  Wheat.  1),  it  may  be  said  of  them  generally,  that  they  have  at 


THEORY   OF   OUR    NATIONAL   EXISTENCE.  133 

Government  instituted  by  Nine  States. 

tion  of  power,  physical  power ;  the  only  tact  determining 
the  possession  of  sovereign  power  in  absolutely  separate 
existence.  Such  a  separation  of  a  State,  after  the  colonies 
had  established,  as  States  in  union,  their  independence  in 
respect  to  the  British  Empire,  would  have  been  revolu- 
tionary secession,  as  to  the  other  States,  being  in  union.^ 

The  fact  that,  even  before  all  had  co-operated  in  the  gov- 
ernment under  the  Constitution,  no  State  severally  exerted 
the  powers  delegated  by  that  instrument,  is  evidence  that, 
except  as  delegated  by  the  associated  peoples  of  the  States, 
these  powers  could  not  be  delegated  to  any  body.^ 

all  times  been  subject  to  some  national  government,  which  has  exercised 
control  over  the  subjects  of  war  and  peace  and  other  matters  pertaining  to 
external  sovereignty ;  and  that  when  the  only  three  States  whichever  ex- 
ercised complete  sovereignty  accepted  the  Constitution  and  came  into  the 
Union  on  an  equal  footing  with  the  other  States,  they  thereby  accepted  the 
same  relative  position  to  the  general  government,  and  divested  themselves, 
permanently,  of  those  national  powers  which  the  others  had  never  exer- 
cised." These  propositions  appear  to  me  to  stand  in  self-contradiction,  and, 
so  far  as  they  can  be  reconciled,  to  be  inconsistent  with  the  general  theory 
sustained  by  the  author. 

1  Dr.  Woolsey,  Pol.  Science,  ii.  p.  249:  "And  doubtless  the  other  States, 
if  unanimous,  would  have  been  justified  at  such  a  serious  crisis,  in  crushing  the 
little  obstacle  to  perfect  union  by  war,  if  that  liad  been  the  necessary  means 
for  the  end  before  them."  By  stating  the  matter  in  this  way.  Dr.  Wool- 
sey presents  the  dilemma  as  a  question  of  international  right,  to  be  settled 
by  methods  adapted  to  differences  between  independent  nations.  It  is  indeed 
in  this  aspect  that  it  is  presented  by  Madison,  in  No.  43  of  the  Federalist. 
He  recognized  the  "  delicate  nature  "  of  the  question,  but  declined  attempt- 
ing an  answer. 

Dr.  Brownson's  view  is  more  consistent  (Am.  Rep.  p.  288) :  "  Hence,  if 
nine  States  had  ratified  the  Constitution  and  the  other  four  had  stood  out 
and  refused  to  do  it,  which  was  within  their  competency,  they  would  not 
have  been  independent  sovereign  States  outside  of  the  Union,  but  territories 
under  the  Union."  That  is,  they  had  it  "  within  their  competency,"  to  with- 
hold co-operation  in  government  for  an  indefinite  period;  and  an  obstruction 
of  this  sort  is  incidental  to  the  investiture  of  sovereignty  in  any  aggregate 
of  personalties  like  an  oligarchy. 

2  "In  the  treaty  of  1783  with  Great  Britain  called  Sovereign  States,  which, 
however,  never  made  a  treaty  separately  with  foreign  nations,  never  be- 
longed, in  their  separate  capacity,  to  the  community  of  nations."  Woolsey's 
Pol.  Science,  i.  p.  204.  Foreign  nations,  at  that  time,  had  no  occasion  to 
decide  for  themselves  whether  the  States  were  severally  sovereign,  or  sover- 


134  CONTINUITY  OF   A  POLITICAL  PEOPLE. 

Various  Governments  under  one  People. 

The  Revolutionary  or  Continental  Congress,  July  4, 1776, 
declared  the  "•  United  Colonies  "  to  be  free  and  independent 
States,  "in  the  name  and  by  the  authority  of  the  good  peo- 
ple of  these  colonies."  But  the  delegates  to  that  Congress, 
before  as  well  as  after  the  establishment  of  State  govern- 
ments, had  received  their  appointment  from  electoral  agen- 
cies which,  in  their  connection  with  the  jDCople  whom  they 
claimed  to  represent,  were  very  different  in  the  various 
colonies.^ 

In  the  government,  under  the  Articles  of  Confederation, 
the  united  political  people  of  the  States  exercised  their 
power  for  general  national  purposes,  by  the  intervention 
of  the  same  organs  by  which  they  exercised  power  for  local 
or  State  purposes.^ 

In  the  government,  under  the  Constitution,  the  same 
political  people,  without   a   revolution,  i.  e.,  without   any 


eign  only  in  union.  But  some  foreign  nations  in  1861  were,  at  least,  very 
near  declaring  tlieir  opinion  on  this  point,  by  the  time  and  manner  of  their 
recognition  of  tlie  Southern  belligerents  (ante,  p.  56),  thcnigli,  as  it  stands 
to-day,  no  foreign  nation  is  committed  to  any  decision.  In  the  second  edition 
(1871)  of  Sir  Robert  Phillimore's  International  Law,  i.  p.  163,  it  is  said  :  "  Tlie 
recent  civil  war  between  the  Southern  and  Northern  States,  and  the  con- 
quest of  the  latter  after  a  fierce  and  desperate  contest,  has  not  so  affected 
the  permanent  International  relations  of  the  Confederation  with  Foreign 
States  as  to  require  any  special  notice  in  this  place.  Whether  a  correct 
view  of  the  Constitution  and  of  the  facts  of  the  case  was,  or  was  not,  taken 
by  the  Southern  States,  who  maintained  that  they  formed  part  of  the  Union 
upon  conditions  expressed  in  the  terms  of  tlie  great  Charter  of  the  Constitu- 
tion, and  that  the  violation  of  them  justified  their  secession;  or  by  the 
Northern  States,  who  maintained  that  tiiis  secession  was  imjustifiable  in 
fact,  and  an  act  of  treason  in  law ;  whether  the  emploj-ment  of  armies  by 
the  Northern  States  to  coerce  the  Southern  States,  and  compel  them  to  re- 
main in  an  Union  which  they  desired  to  leave,  was,  or  was  not,  ir  accord- 
ance with  the  principle  of  freedom  upon  which  the  United  States  justified 
their  secession  from  Great  Britain,  are  not  subjects  to  be  discussed  even  indi- 
rectly in  this  chapter."  The  author,  it  will  be  noticed,  uses  the  term  Con- 
ftdemtion  as  a  proper  one  for  the  country  in  its  international  relat'.ons. 

1  Curtis's  Hist,  of  the  Const.,  i.  p.  11,  note. 

2  Curtis's  Hist,  of  the  Const.,  i.  p.  245;  Kent's  Comm.,  i.  208;  Journal  of 
Cong.,  1775,  May. 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  135 

What  has  been  the  Continuing  Fact. 

shifting  of  sovereign  power,^  exercised  their  powers  for 
national  purposes  by  the  immediate  action,  through  special 
representatives,  of  the  poKtical  peoj^le  of  each  State. 

The  possession  by  this  "  people  of  the  United  States  "  of 
the  powers  exerted  by  a  general  government,  co-existent 
with  the  possession  by  the  same  people  of  other  powers,  ex- 
erted by  the  State  governments,  continued,  in  manner  and 
form  more  or  less  distinctly  recognized,  from  the  time  of 
the  Revolution  onward ;  and,  prior  to  the  late  civil  war,  no 
political  people  or  body  politic  had  appeared,  on  the  terri- 
tory recognized  by  foreign  nations  from  time  to  time  as 
belo-nging  to  the  United  States,  in  any  public  international 
relation,  except  as  one  of  the  United  States,  or  been  rec- 
ognized by  foreign  nations  or  by  any  State  of  the  Union 
as  using  or  holding,  in  severalty,  the  powers  exerted  by  the 
general  government.  Nor,  except  as  thus  being  one  of  the 
United  States,  had  any  such  political  body  used  or  held 
independently  the  residuarj^  powers.^ 

1  The  contrary  of  this  is  stated  by  Taney,  C.  J.,  in  Dred  Scott  v.  Sanford, 
19  Howard,  441 :  "  When  the  present  United  States  came  into  existence, 
under  tlie  new  government,  it  was  a  new  political  body,  a  new  nation,  then 
for  the  first  time  taking  its  place  in  the  family  of  nations." 

Some  would  regard  the  change  from  the  Confederation  to  the  Constitu- 
tion as  essentially  revolutionary,  as  Woolsey,  Pol.  Science,  ii.  p.  249,  and 
Cooley,  Const.  Limitations,  p.  8,  which  it  was  if,  in  the  adoption  of  the  Con- 
stitution, the  nation  or  people  as  a  mass,  assumed  and  exercised  sovereign 
power,  or  if  three  States  became  alien  nations,  when  it  was  adopted  by  ten 
other  States,  as  Judge  Cooley  presents  it. 

2  Brownson,  Am.  Rep.  221.  "  The  key  to  the  mystery  is  precisely  in  this 
appellation  United  States,  which  is  not  the  name  of  the  country,  for  its  dis- 
tinctive name  is  America,  but  a  name  expressive  of  its  political  organization. 
In  it  there  are  no  sovereign  people  without  States,  and  no  States  without 
union,  or  that  are  not  united  States.  The  term  united  is  not  part  of  a  proper 
name,  but  is  simply  an  adjective  qualifying  States,  and  has  its  full  and  proper 
sense.  Hence,  while  the  sovereignty  is  and  must  be  in  the  States,  it  is  in  the 
States  united,  not  in  the  States  severally  .  .  .  but  there  could  be  no  sover- 
eign union  without  the  States,  for  there  is  no  union  where  there  is  nothing 
united. 

"  This  is  not  a  theory  of  the  Constitution,  but  the  constitutional  fact 
itself.  It  is  the  simple  historical  fact  that  precedes  the  law  and  constitutes 
the  law-making  power.  .  .  . 


136  DELEGATING   STATES. 

Delegation :  By  Whom  and  to  Whom. 

The  power  thus  held  bj  the  people  of  the  United  States, 
being  sovereign  power,  was  taken  and  held  by  them  volun- 
taril}',  of  autonomic  will  and  choice.  Yet  that  will  was 
not  the  will  of  an  integral  or  unitary  people,  but  the  will 
of  the  combined  peoples  of  the  States.  The  power  belonged 
to  them  in  their  union  ;  but  the  participation  of  the  people 
of  each  State  was  voluntary,  as  sovereign.  They  were  not, 
and  could  not,  in  the  nature  of  the  case,  be  obliged  to 
participate  in  the  possession  of  the  powers  of  sovereignty. 

By  those  who  hold  that  each  State  had  a  several  inde- 
pendent sovereignty,  the  second  of  the  Articles  of  Confed- 
eration has  been  much  insisted  on  :  —  "  Each  State  retains 
its  sovereignty,  freedom,  and  independence,  and  every 
power,  jurisdiction,  and  right  which  is  not  by  this  confede- 
ration delegated  to  the  United  States  in  Congress  as- 
sembled." 

But  the  question  is,  —  What  was  "  its  sovereignty,"  &c.  ? 
If  the  States  are  looked  upon  as  delegating  severally,  the 
question  still  is,  —  How  did  they  hold  the  power  they  could 
delegate  ?  This  declaration  could  not  make  the  condition 
of  things  which  existed  before  it,  and  which  determines  the 
value  of  the  declaration.  It  is  a  piece  of  testimony,  to  be 
compared  with  other  existing  evidence. 

The  language  or  general  tenor  of  the  written  constitu- 
tion corresponds  with  the  view  here  taken  of  the  pre-exist- 
ing fact.  It  grants  or  conveys  powers  only  b}^  instituting  a 
general  government  to  be  the  instrument  of  those  powers.! 

"  Tliis  Constitution  is  not  conventional,  for  it  existed  before  the  people 
met  or  could  meet  in  convention.  They  have  not,  as  an  independent  sover- 
ei}in  people,  either  established  their  union,  or  distributed  themselves  into 
distinct  and  mutually  independent  States.  The  Union  and  the  distribution, 
the  unity  and  the  distinction,  are  both  original  in  their  constitution,  and 
they  were  born  United  States.  .  .  .  The  Union  and  the  States  were  bora 
together." 

1  In  Article  X.  of  the  Amendments  it  is  said  :  "  The  powers  not  delegated 
to  the  United  States  by  tlie  Constitution,"  &c.  This  statement  of  the  recip- 
ient of  the  powers  delegated  is  in  discrepancy  from  the  rest  of  the  instru- 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  137 

Chisholra  v.  Georgia;  as  Authority. 

This  written  constitution  is  a  political  fact,  just  as  any 
statute  law  is  a  political  fact  so  far  as  it  may,  by  heing  en- 
forced, prove  that  certain  political  powers  are  actually 
held  and  exercised  by  certain  persons.  The  written  con- 
stitution, so  far  as  it  is  carried  into  effect  according  to  its 
provisions,  is  a  political  fact,  by  becoming  evidence  that 
the  use  of  some  of  those  sovereign  powers  which  belong 
to  the  States  continuing  in  union  is  determined  by  their 
joint  will  and  action,  through  the  constituted  government, 
and  that  the  use  of  the  residue  of  those  powers  which 
belong  to  the  States  continuing  in  union  is  determined  by 
their  several  wills  and  action,  through  the  State  govern- 
ments. 

Among  all  the  early  opinions  which  supported,  more  or 
less  distinctly,  some  theory  of  public  law  opposed  to  the 
doctrine  of  State-Rights,  so  called,  none  have  been  more 
triumphantly  cited,  by  jurists  of  the  class  which  used  to 
be  called  Federal,  than  those  of  Chief  Justice  Jay  and 
Judge  Wilson  sustaining  the  decision  of  the  majority  of 
the  court  in  Chisholm  v.  Georgia.  There  are  probably 
few  among  the  readers  of  such  citations  in  the  pages  of 
Story,  or  of  others  who  have  written  on  our  public  law 
since  the  war,  w^ho  think  of  asking  what  is  not  usually 
told  with  these  citations,  that  is,  what  benefit  the  plaintiff 
took  by  the  judgment  of  the  court  in  his  favor  against 
the  State.  Few  who  read  these  modern  works  will  take 
the  trouble  to  refer  to  the  ill-printed  and  now  dingy 
pages  of  2  Dallas,  on  page  480  of  which  is  the  conclu- 
sion of  the  report  of  this  case  :  — 

"  Ordered^  that  unless  the  said  State  shall  either  in  clue  form  ap- 
pear, or  shew  cause  to  the  contrary  in  this  Court,  by  the  first  day  of 

ment,  and  should  be  construed  to  read  in  harmony ;  that  is,  as  meaning,  the 
powers  not  granted  6y  the  United  States  to  the  government,  &c. 

Those  whose  theory  requires  a  United  States,  holding  sovereignty,  which 
is  not  identical  with  the  States  united,  think  the  term  delegated  "unfortu- 
nate;" as  does  Dr.  Woolsey,  Pol.  Science,  ii.  p.  251. 


138  co^'STITUTroN  as  evidence. 

Chisliolra  V.  Georgia ;  as  Authority. 

next  Term,  judgment  by  default  shall  be  entered  against  the  said 

State." 

The  day  after  this  decision  was  pronounced,  a  resolution 
was  offered  in  the  House  of  Representatives  by  Theodore 
Sedgwick  of  Massachusetts,  "  a  very  decided  Federalist," 
for  an  amendment  to  the  Constitution,  protecting  the 
States  against  suits  by  individuals.^ 

The  State  had  never  appeared  in  the  case,  and  had  not 
been  represented  by  counsel  on  the  argument.  Nor  did 
the  State  appear  after  this  decree,  or  show  cause  to  the 
contrary  of  any  thing.  On  the  page  of  2  Dallas,  above 
cited,  in  a  note  by  the  reporter,  it  is  said  :  — 

"  In  February  Term,  1794,  judgment  was  rendered  for  the  Plain- 
tiff, and  a  Writ  of  Enquiry  awarded.  The  Writ,  however,  was  not 
sued  out  and  executed ;  so  that  this  cause,  and  all  the  other  suits 
against  States,  were  swept  at  once  from  the  Records  of  the 
Court,  by  the  amendment  to  the  Federal  Constitution,  agreeably  to 
the  unanimous  determination  of  the  Judges  in  Hollingsworth  et  al. 
V.  Virginia,  argued  at  February  Term,  1798." 

If  the  judgment  of  the  Supreme  Court  in  this  case  had 
been  carried  into  execution,  by  the  authority  of  the  gen- 
eral government,  against  the  will  of  the  State,  as  against 
a  party  to  a  suit  at  law,  the  clause  in  the  Constitution 
upon  which  the  court  asserted  its  jurisdiction  would  have 
been  evidence  of  the  political  fact  that  the  application  of 
justice  between  "  a  State  and  citizens  of  another  State  " 
was  among  the  powers  which  were  to  be  exercised  in  the 
joint  will  and  action  of  the  States  by  the  general  govern- 
ment. 'J'he  ojjinions  of  the  several  justices  who  had  sus- 
tained that  view  might  then  have  had  value,  as  part  of  tlje 
evidence  of  tliat  political  fact.  Though  even  in  that  case 
those  judges  could  not  have  settled  the  political  history  of 
the  formation  of  the  Constitution. 

1  Hildreth's  History  of  the  United  States,  2d  Series,  i.  pp.  42,  408. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  139 

Sovereignty  distributed  in  Exercise. 

But  of  what  possible  authority  to  determine  the  political 
duty  of  the  citizen,  in  a  crisis  like  that  of  1861,  are  the 
opinions  delivered  in  a  case  which,  with  all  the  other  suits 
against  the  States  then  pending,  was  swept  from  the  records 
of  the  court,  by  its  own  unanimous  decision,  almost  a  hun- 
dred years  ago  ? 

Sovereignty,  being  the  attribute  of  an  aggregate  of  polit- 
ical personalities,  was,  by  the  written  constitution,  dis- 
tributed 171  exercise  ;  but  it  was  not  divided  in  possession} 
It  was  only  as  to  this  distribution  that  the  provision  as  to 
amending  by  three  fourths  was  declared.^  The  possession 
of  that  sovereignty  by  the  States  united  was  beyond  any 
constitutional  amendment,  because  it  was,  and  has  been 
above  this  or  any  written  constitution  ;  because  it  has  been 
the  primary  jjolitical  fact  for  which  no  rule,  written  or 
unwritten,  could  be  stated/^ 

According  to  this  view  of  the  fact  above  the  law,  the 
fact  on  which  the  written  constitution,  as  law,  rested, 
even  those  powers  which,  in  Article  X.  of  the  Amend- 
ments, are  said  to  be  "  reserved  to  the  States,  or  to  the 
people,"  were  not  possessed  by  the  States,  or  by  the  people 

1  It  would  seem  that  Mr.  A.  H.  Stepliens's  idea  was  very  nearly  this.  At 
least,  he  recognizes  the  distribution  of  sovereign  powers  as  something  distinct 
from  the  jiossession  of  sovereignty.  Compare  History  of  the  War  between 
the  States,  vol.  ii.  p.  23. 

-  Therefore  this  provision  does  not  prove,  as  argued  by  Mr.  Pomeroy, 
Const.  Law,  §  111,  that  the  Constitution  does  not  derive  its  authority,  as 
law,  from  the  States  as  the  possessors  of  sovereign  power. 

'  In  the  supposed  case  of  an  attempt  of  three  fourths,  by  an  amendment, 
to  destroy  the  political  existence  of  the  other  fourth  of  the  States,  or  of  a  less 
number,  —  that  could  only  be  regarded  as  revolutionary  change  of  the  ulti- 
mate seat  of  power.  The  provision  in  Article  V.,  "'that  no  State  without 
its  consent  shall  be  deprived  of  its  equal  suffrage  in  the  Senate,"  might  be 
considered  as  the  acknowledgement  of  this.  Though,  what  is  there  in  the 
Constitution  as  law  for  the  States,  to  prevent  three  fourths  from  doing  away 
with  the  Senate  altogether  ?  or  what  is  there  to  secure  a  State's  representa- 
tion in  the  House  of  Representatives  ?  If  all  depends  upon  ivords  in  the 
Constitution,  there  is  nothing  to  prevent  the  same  provision  from  being 
amended  out  of  existence. 


140  SOVEREIGNTY   OF   STATES   IN   UNION. 

The  Sovereignty  of  a  Democratic  Oligarchy. 

of  the  States,  as  severally  sovereign,  but  as  jointly  sover- 
eign only,  that  is,  as  they  were  united  with  the  other 
States.  They  would  not,  as  such,  have  held  these  reserved 
powers,  unless  they,  at  the  same  time,  held  the  powers 
delegated  to  the  general  government.  It  was  because  they 
were  United  States,  and  only  as  they  were  such,  that  they 
held  either  class  of  powers. 

Thus  the  States  in  Union  held  sovereignty  as  a  unit. 

Sovereignty  in  the  American  Republic  was  not  popular 
sovereignty  ;  the  sovereignty  of  so  many  millions  of  human 
beings.  The  political  people,  organized  as  the  people  of 
the  States,  held  it,  and  might  be  described  as  a  democratic 
oligarchy.^ 

For  this  reason  the  name,  the  United  States  of  America, 
accorded  with  the  fact,  and  was  the  proper  name.^ 

1  Mr.  John  Austin,  an  English  writer  whose  acuteness  of  thought  and 
lucidity  in  statement  have  often  been  acknowledged  in  our  own  legal  litera- 
ture, speaking  of  "  the  supreme  government  of  the  United  States  of  Amer- 
ica," in  his  work.  The  Province  of  Jurisprudence  Determined,  vol.  i.  p.  222, 
luis  said :  "  I  believe  that  the  sovereigntj'  of  each  of  the  states  and  also 
of  the  larger  state  arising  from  the  Federal  Union  resides  in  the  states' 
governments  as  forming  one  aggregate  bodj^  meaning  by  a  state's  gov- 
ernment, not  its  ordinary  legislature,  but  the  bod}'  of  its  citizens  which 
appoints  its  ordinary  legislature,  and  which,  the  Union  apart,  is  properly 
sovereign  therein.  If  the  several  immediate  chiefs  of  the  several  United 
States  were  respectively  single  individuals,  or  were  respectively  narrow 
oligarchies,  the  sovereignty  of  each  of  the  states,  and  also  of  the  larger 
state  arising  from  the  Federal  Union  would  reside  in  those  several  indi- 
viduals, or  would  reside  in  those  several  oligarchies,  as  forming  a  collective 
whole."  Jameson,  in  Const.  Convention,  §  00,  cites  this  view  as  erroneous, 
if  understood  as  identical  with  that  taken  by  Dr.  Brownson  and  myself. 
Mr.  Pomeroy  also,  in  Const.  Law,  p.  2! t,  rejects  this,  together  with  Austin's 
view  of  sovereignty  in  general,  and  considers  it  as  involving  the  conclusion 
that  there  is  no  sovereign  in  the  United  States  (ib.  §  11,  note),  which  result, 
as  I  understand  the  meaning  of  words,  is  a  characteristic  of  the  theory  held 
by  himself  and  Mr.  Jameson,  or  by  all  who  look  for  the  sovereign  of  each 
country  in  the  nation  at  large,  or  the  inhabitants  as  a  mass  of  individuals. 

2  "  The  sovereign  people  are  not  the  people  outside  of  State  organization, 
nor  the  people  of  the  States  severally,  but  the  distinct  people  of  the  several 
States  united,  and  therefore  most  appropriately  called  the  people  of  the 
United  States."     Brownson,  Am.  Kep.  227. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  141 

Summary  of  the  Historic  Fact. 

This  then  is  history,  —  The  inhabitants  of  the  United 
States  constituted  a  nation  in  which  sovereignty  was  mani- 
fested by  the  organized  political  people  of  the  several 
States,  being  united  as  States,  and  was  exercised  by  a 
general  government  as  the  instrument  of  that  organized 
political  people  of  such  States,  being  so  united,  and  by  State 
governments  as  the  instruments  of  the  political  people  of 
each  several  State,  being  united  with  the  other  States. 

The  political  people  of  the  several  States  in  union  insti- 
tuted the  general  government,  under  the  Constitution  as 
law,  to  be  the  means  for  exercising  their  sovereignty  over 
the  people  considered  as  a  mass  of  inhabitants  without 
reference  to  State  boundaries. 

And,  negatively,  —  The  people  of  the  United  States,  con- 
sidered as  a  mass  of  inhabitants  without  reference  to  State 
boundaries,  did  not  institute  the  general  government,  under 
the  Constitution  as  law,  to  be  the  means  for  exercising  their 
sovereignty  over  the  political  people  of  the  several  States.^ 

Sovereign  power  cannot  be  held  except  by  consent  or 
will  of  the  holder.  No  State,  therefore,  could  be  bound, 
as  by  law,  to  hold  either  the  "  delegated "  or  the  "  re- 
served "  powers. 

But,  by  the  nature  of  the  case,  a  State  could  not  hold 
either  one  of  these  classes  of  powers  unless,  at  the  same 
time,  it  held  the  other  also,  by  remaining  united  with  the 
other  States. 

1  Tlie  proposition  here  denied  is,  however,  precisely  that  which  was 
aflBrmed  by  Chief  Justice  Jay  and  Judge  Wilson  in  Chisholm  v.  Georgia,  see 
ante,  p.  108,  IX.,  and  note;  and  which  has  reappeared  in  later  cases  in  tlie 
Supreme  Court,  see  ante,  pp.  20,  31 :  and  is  now  presented  in  a  more  system- 
atic dress  in  the  works  of  several  recent  writers  on  our  political  history  and 
public  law.     See  ante,  pp.  114,  1'27. 


142  THE   APPLICATION   OF   THE   THEORY. 

Mr.  Lincoln's  theory  of  the  Union. 


CHAPTER    V. 

The  Effect  of  the  Secessiox  Ordixaxces  under  the  trite  Theory 
OF  the  National  Existence.  —  The  political  Action  of  the  Gov- 
ernment IN  ITS  SEVERAL  FUNCTIONS,  PRESENTED  AS  IT  MAY  HAVE 
INDICATED    A  -VIRTUAL    RECOGNITION     OF     THAT     EfFECT. 

In   his   first   Message,  July  4,    1861,    President    Lincoln 
said  :  — 

"  It  might  seem  at  first  thought  to  be  of  little  diflference  whether 
the  present  movement  at  the  South  be  called  '  secession  '  or  '  rebel- 
lion,' The  movers,  however,  well  understand  the  difference.  At 
the  beginning,  they  knew  that  they  could  never  raise  their  treason 
to  any  respectable  magnitude  by  any  name  which  implies  violation 
of  law.  .  .  .  They  invented  an  ingenious  sophism  which,  if  con- 
ceded, was  followed  by  perfectly  logical  steps,  through  all  the  inci- 
dents, to  the  complete  destruction  of  the  Union.  The  sophism 
itself  is  that  any  State  may,  consistenthj  with  the  national  Constitu- 
tion, and  therefore  lawfuUi/  and  peacefully^  withdraw  from  the  Union 
without  the  consent  of  the  Union  or  of  any  other  State.  .  .  .  This 
sophism  derives  much,  perhaps  the  whole,  of  its  currency  from  the 
assumption  that  there  is  some  omnipotent  and  sacred  supremacy 
pertaining  to  a  State,  —  to  each  State  of  our  Federal  Union.  Our 
States  have  neither  more  nor  less  power  than  that  reserved  to  them 
in  the  Union,  by  the  Constitution,  —  no  one  of  them  ever  having 
been  a  State  out  of  the  union  ;  .  .  .  having  never  been  States,  either 
in  substance  or  in  name,  outside  of  the  Union.  .  .  .  The  States  have 
their  status  in  the  Union,  and  they  have  no  other  legal  status.  If 
they  break  from  this,  they  can  only  do  so  against  law  and  by  revolu- 
tion. The  Union,  and  not  themselves  separately,  procured  their 
independence  and  their  liberty.  By  conquest  or  purchase,  the  Union 
gave  each  of  them  whatever  of  independence  and  liberty  it  has. 
The  Union  is  older  than  any  of  the  States,  and,  in  fact,  it  created 
them  as   States.     Originally  some  dependent  ^  colonies  made   the 

^  Von  Hoist,  p.  6,  note,  has  read  the  citation  independent,  and  inserts  after 
the  word,  in  brackets  :  "  [/.  e.,  independent  of  one  another]." 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  143 

Mr.  Lincoln's  theory  of  the  Union. 

Union,  and  in  turn  the  Union  threw  off  their  old  dependence  for 
them,  and  made  them  States  such  as  they  are.  Not  one  of  them 
ever  had  a  State  Constitution  indepeiident  of  the  Union."  ^ 

It  would  be  somewhat  difficult,  to  say  the  least,  to 
gather  from  Mr.  Lincoln's  various  public  utterances  any- 
consistent  statement  of  the  nature  of  the  Union.  His 
language  is  not  here  cited  as  having  any  authority  what- 
ever. These  expressions,  from  the  Message,  are  quoted 
only  as  they  may  indicate  that  Mr.  Lincoln  may  per- 
haps have  accepted,  obscurely,  indeed,  and  with  many 
inconsistencies  and  much  confusion  of  thought,  that  inves- 
titure of  sovereignty  which,  in  the  last  chapter,  I  have 
proposed  as  the  only  one  consistent  with  the  facts  pre- 
sented in  history. 

In  his  denial  of  the  "  assumption "  upon  which  the 
"  sophism  "  of  a  right  of  peaceable  secession  depended  for 
its  currency,  Mr.  Lincoln  had  before  his  mind  tlie  fetish 
idea  of  the  Constitution,  which  is  indicated  by  his  saying 
that  the  States  had  only  the  reserved  powers,  —  the  powers 
reserved  to  them  "by  the  Constitution,"  —  and  so  denying 
that  the  States  were  the  United  States,  and  making  the 
general  government  superior  to  the  States  in  union. 

His  assertion,  in  this  instance,  of  a  Union  —  the  United 
States,  existing,  in  the  order  of  time,  before  there  were 
States  to  be  united  —  and  which,  as  a  pre-existent  power, 
gave  them  their  existence  is,  so  stated ,2  a  contradiction  in 
terms.  It  is  only  another  presentation  of  the  hypothetical 
nation  or  people^  holding  sovereignty  by  human  nature, 
without   any   antecedents   or   any  political  organization,^ 

1  Congressional  Globe  Reports,  1st  Sess.,  37th  Congress,  Appendix,  p.  3; 
Macpherson's  Political  History  of  the  Rebellion,  p.  127.  The  italicizing,  &c., 
above  given  is  as  in  these  reports. 

2  In  his  Inaugural,  he  had  said :  "Tlie  Union  is  much  older  than  the  Con- 
stitution." Macpherson's  Pol.  Hist.  lOG.  This  is  a  very  different  proposition, 
and  is  that  which  gives  the  key  to  the  problem. 

3  Compare  ante,  p.  114.     In  this  Message,  Mr.  Lincoln  says  of  the  Consti- 


14:4  THE   APPLICATION   OF   THE   THEORY. 

Effect  of  Secession  Ordinances. 

which  becomes  more  prominent  in  some  of  his  later  public 
utterances. 

But  still  there  is  in  these  passages  the  recognition  of  the 
fundamental  fact  which  is  thus  stated  bj'^  Von  Hoist,  vol. 
i.,  p.  6 :  "  Each  individual  colony  became  a  State  only  in 
so  far  as  it  belonged  to  the  United  States,  and  in  so  far  as 
its  population  constituted  a  part  of  the  people."  And  it  is 
in  support  of  this  historical  statement  that  Von  Hoist  cites 
these  words  from  Mr.  Lincoln's  Message.^ 

By  continuing  in  union,  the  States  hold  sovereignty,  and 
not  otherwise  ;  because  they  never  held  it  otherwise,  Con- 
stitution or  no  Constitution. 

This  possession  of  sovereignty  as  a  unit  by  the  States  in 
union,  and,  as  such,  constituting  a  nation  or  a  people 
which  is  known  to  exist  politically  only  as  there  have 
been  States  in  union,  continued,  as  any  possession  of  sov- 

tution  adopted  for  the  Confederate  States  :  "  They  omit '  we  the  people,'  and 
substitute  '  we  the  deputies  of  the  sovereign  and  independent  States.'  Why  ? 
Why  this  deliberate  i>ressing  out  of  view  of  the  rights  of  men  and  the  au- 
thority of  the  people?"  Macpherson  Hist.  p.  128.  Mr.  Lincoln  probably 
referred  to  the  "  Constitution  for  the  provisional  government  "  (see  A.  H. 
Stephens's  Hist,  of  the  War,  &c.,  ii.  p.  714),  which  was  superseded  by  that 
adopted  March  11,  1861,  ib.  p.  722,  and  Appendix  to  Chase's  Decisions,  by 
B.  T.  Johnson,  which  reads  :  "  We,  the  people  of  the  Confederate  States, 
each  State  acting  in  its  sovereign  and  independent  character." 

1  In  this  instance,  Mr.  Lincoln  states  a  matter  of  historical  fact  without 
reference  to  the  written  Constitution  as  a  law  for  the  case.  Eut  in  his  In- 
augural, March,  4,  1861,  the  leading  idea  before  his  mind  seems  to  be  that  of 
the  Constitution  acting  by  its  own  vigor,  the  fetish  idea.  He  says  :  "  I  hold 
that,  in  contemplation  of  universal  law  and  of  the  Constitution,  the  Union  of 
these  States  is  perpetual.  Perpetuity  is  implied,  if  not  expressed,  in  the 
fundamental  law  of  all  national  governments.  It  is  safe  to  assert  that  no 
government  proper  ever  had  a  provision  in  its  organic  law  for  its  own  termi- 
nation. Continue  to  execute  all  the  express  provisions  of  our  national  Con- 
stitution, and  the  Union  will  endure  for  ever,  it  being  impossible  to  destroy 
it,  except  by  some  action  not  provided  for  in  the  instrument  itself."  In  this 
connection  occurs  a  passage  which  has  often  been  cited,  judicially  and 
otherwise  :  "  It  follows,  from  these  views,  that  no  State,  upon  its  own  mere 
motion,  can  lawfully  get  out  of  the  Union  ;  that  resolves  and  ordinances  to  that 
effect  are  legally  void." 

See  language  very  similar  to  this  in  Chase's  opinion  in  Texas  v.  White, 
ante,  pp.  11,  12. 


THEORY  OF   OUE   NATIONAL  EXISTENCE.  145 

State-Lapse;  or,  State-Suicide. 

ereignty  continues  until  it  may  be  interrupted  by  con- 
quest, or  by  revolution,  or  by  abdication. 

States  cannot  be  obliged  to  hold  sovereignty,  either 
singl}^  or  in  union  with  other  States.  Nobody  can  be 
obliged  to  hold  sovereignty.  Obliged  to  be  sovereign  is  a 
contradiction  in  terms.  Sovereignty,  by  its  nature,  cannot 
be  held  under  law. 

A  State  thus  holding  sovereignty  in  union  with  the  other 
States  may  refuse  to  hold  it  so,  in  union. 

Massachusetts,  or  Texas,  or  New  York,  or  South  Caro- 
lina, being  in  union  with  the  other  States,  was  one  of  an 
aggregate  of  personalities  holding  sovereignty  as  a  unit. 
Each  one,  or  any  one  of  them,  was  free  to  refuse  to  hold  it 
so ;  that  is,  in  union.  A  State  could  not  be  obliged  by  any 
law  to  hold  it  so,  that  is,  in  union,  any  more  than  it  could 
be  obliged  to  hold  it  in  any  other  manner  whatever. 

The  eleven  Southern  States,  that  is,  the  severally  organ- 
ized political  people  of  those  States,  had,  in  union  with  the 
other  States,  as  an  aggregate  of  corporate  personalities, 
held  sovereignty  as  a  unit.  They  refused  to  hold  it  so,  in 
union  with  the  other  States,  and  were  free  to  refuse, 
because,  by  the  nature  of  things,  they  were  not  obliged  to 
hold  it  at  all. 

As  such  refusal,  the  ordinances  of  secession  were  not 
nullities.  Null  and  void  are  terms  applicable  to  transactions 
among  persons  holding  powers  under  law.  But  the  posses- 
sion of  sovereign  power  is  not  under  law.  These  ordinances 
then  were  efficacious,  in  leaving  sovereignty,  an  undimin- 
ished unit,  exclusively  in  the  States  continuously  holding  it 
by  the  fact  of  their  voluntarily  continuing  in  union ;  the  terri- 
tory and  population  of  the  refusing  States  remaining  under 
the  same  sovereignty  as  before,  but  thereupon  vested  onl}'" 
in  the  States  continuing  in  the  voluntarily  existing  union. ^ 

1  Brownson  Am.  Rep.  290.  "  The  State,  under  the  American  system,  as 
distinguished  from  Territory,  is  not  in  the  domain  and  population  fixed  to  it ; 


146  THE   APPLICATION   OF   THE   THEORY. 

Conditions  of  State-Lapse. 

From  the  nature  of  the  case,  it  being  one  where  the  sub- 
ject-matter is  above  the  domain  of  law,  there  will  always  be 
the  practical  question,  which  States  are  the  existing  States 
in  union  and  which  are  those  who  ceased  to  exist  bj^  refus- 
ing to  be  of  the  Union.  The  solution  of  this  may  appear 
easier  where  there  is  on  one  side  a  large  majority  in  number, 
correspondingly  strong  in  population,  territory,  and  other 
material  elements  of  political  power,  and  a  minority  on 
the  other,  correspondingly  weak  in  these  respects.  But 
the  case  may  be  supposed  that  the  States  should  be  divid- 
ed into  two  nearly  equal  portions,  each  claiming  to  be 
the  United  States.  The  possibility  of  such  a  crisis  must 
be  incidental  to  any  investiture  of  sovereignty  in  a  body  of 
co-ordinate  personalities,  being  essentially  an  oligarchy, 
and  the  solution  could  only  depend  on  force.  But  the 
possible  occurrence  of  such  a  crisis  is  not  excluded  by  sup- 
posing a  constitution  resting  on  the  will  of  the  nation  as  a 
mass  of  individuals.  For  then  it  becomes  merely  a  ques- 
tion of  the  numerical  majority,  and  this  would  be  decisive 
only  as  superior  force  of  either  party  might  appear  to 
prove  it  the  majority. 

I  have  already  cited  Dr.  Brownson's  statement,  ante^  p. 
133,  note  1,  that  a  similar  result  must  have  ensued  even  in 
the  inceptive  period  of  the  Union,  in  1781,  had  four  of  the 
States  "stood  out  and  refused"  to  ratify  the  Constitution. 

nor  yet  in  its  exterior  organization,  but  solely  in  the  political  powers,  rights, 
and  francliises  which  it  holds  from  the  United  States,  or  as  one  of  the  United 
States.  As  these  are  rights,  not  obligations,  the  State  may  resign  or  abdi- 
cate them  and  cease  to  bo  a  State,  on  the  same  principle  that  any  man  may 
abdicate  or  forego  his  rights.  In  doing  so,  the  State  breaks  no  oath  of 
allegiance,  fails  to  fulfil  no  obligation  she  contracted  as  a  State.  She  simply 
foregoes  her  political  rights  and  franchises.  So  far,  then,  secession  is  possible, 
feasible,  and  not  unconstitutional  or  unlawful."  The  parallel  here  suggested 
conveys  the  erroneous  idea  that  the  States  held  sovereign  powers,  in  union, 
under  some  law,  as  individual  citizens  hold  riglits  and  francliises.  This  is 
liable  to  mislead.  The  difference  between  abdication  of  sovereignty  and  the 
surrender  of  rights  under  law  is  in  the  fact  that  the  political  power  abdicated 
immediately  passes  over  to  some  one  else. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  147 

Von  Hoist's  Comment  on  Brownson. 

Von  Hoist,  vol.  i,  p.  57,  note,  cites  this  from  Brownson  as 
"  an  interesting  instance  of  the  length  to  which  American 
political  doctrinarians  of  the  period  extending  from  the 
time  of  the  IMissonri  Compromise  to  the  outbreak  of  the 
civil  war  have  gone."  And  his  criticism  is  "The  facts 
that  the  resolution  of  the  convention  made  the  Constitution 
l)indiug  only  on  those  States  that  would  ratify  it,  and  that 
it  never  occurred  to  any  one  to  look  upon  North  Carolina 
and  Rhode  Island  as  territories  until  they  should  adopt  the 
Constitution,  are  of  no  consequence  to  him.  The  proposi- 
tion seems  to  him  a  logical  conclusion  of  his  general  theory 
of  the  relation  of  the  States  to  the  Union,  and  that  is  suf- 
ficient for  him."  The  German  author  is  however  entirely 
out  of  the  way  in  supposing  such  "  logical  conclusion  "  to 
have  been  stated  during  the  period  he  mentions.  None  could 
be  required  before  an  attempt  to  establish  one  or  more 
States  as  severally  sovereign  should  have  forced  some  con- 
clusion as  it  would  have  been  forced  at  the  close  of  the  last 
century,  if  North  Carolina  or  Rhode  Island  had  set  up  in- 
dependent alien  sovereignty,  or  proposed  to  revert  to  the 
relation  of  colonies  of  Great  Britain.  Von  Hoist's  own 
statement,  as  already  cited  in  this  chapter,  should  have 
enabled  him  to  understand  that,  if  it  never  occurred  to  any 
one  at  that  time  to  treat  those  States  as  territories,  neither 
at  that  time  did  anybody  regard  them  as  foreign  coun- 
tries, nor  did,  at  that  time,  the  laws  of  alienage  apply  as 
between  their  citizens  and  those  of  the  other  States ;  that 
is,  in  the  interval  between  the  action  of  the  convention  and 
the  adoption  by  those  States  of  the  pro^josed  constitution 
of  government.^ 

At  the  outbreak  of  the  movement,  there  was,  of  necessi- 
ty, a  doubt  how  far  the  act  of  the  State  conventions  and 
officials  of  the  existing  State  governments  should  be  ac- 

1  Not  even  in  Tucker's  argument  in  App.,  note  B,  §  13,  of  his  Black- 
Btone,  Vol.  i.     As  to  Judge  Cooley's  discovery,  see  ante,  p.  132,  note  2. 


148  THE   APPLICATION   OF   THE   THEORY. 

Cori)orate  Responsibility  of  a  People. 

cepted  as  the  act  of  the  political  people,  in  each  of  the 
eleven  States.^  This  doubt  was  expressed  by  Mr.  Lincoln 
in  his  first  Message..  But  under  the  aspect  which  the  re- 
bellion assumed  as  it  progressed,  compelling,  by  its  sheer 
magnitude,  recognition  as  a  territorial  war  even  from  the 
government  as  to  which  the  persons  engaged  were  deemed 
rebels,  there  could  be  no  question  but  that  all,  without 
reference  to  majority  or  minority,  were  involved  in  any 
consequences  which  might  affect  the  State  as  a  political 
personality.  This  conclusion  is  based  upon  a  principle 
wdiich  I  assume,  as  a  principle  or  as  a  fact,  that  political 
power  can  oiily  belong  to  the  political  people  of  the  State, 
as  an  integer.^  The  idea  that  the  political  franchises  of 
the  individual  citizen  are  an  inherent  personal  right  is  a 
fragment  of  the  rubbish  of  the  social-compact  origin  of 
government.  The  theory  of  a  State  —  a  loyal  or  well-dis- 
posed State  of  the  Union  —  existing  all  the  time  of  the 
civil  war,  because  the  written  Constitution  requires  or  pre- 
supposes the  existence  of  such  States,  somewhere,  in  some 
supposed  human  beings,  supposed  to  wish  to  be  citizens  of 

1  See  Brownson's  Quarterly  Rev.  (18G4)  pp.  39,  40  ;  Am.  Rep.  312.  For- 
eign nations,  it  will  be  rcmonibered,  took  a  position  on  the  question  of  bel- 
ligerency which  excluded  any  distinction  between  the  State,  as  a  political 
person,  and  the  inhabitants,  as  citizens  of  the  United  States ;  because  they 
recognized  the  State  governments  as  having  cajjacity  to  wage  war.  Ante, 
p.  56. 

2  In  State  of  Georgia  v.  Stanton,  G  Wall.  6'),  it  was  said  in  tlie  argument 
of  the  counsel  for  the  State,  —  "A  republican  State,  in  every  political,  legal, 
constitutional,  and  juridical  sense,  as  well  under  the  law  of  nations  as  tlie  laws 
and  usages  of  the  mother  country  [compare  tlie  historical  statement,  ante, 
pp.  123-125],  is  comi)osed  of  those  persons  who,  according  to  its  existing 
constitution  and  fundamental  law,  are  the  constituent  body.  All  other  per- 
sons within  its  territory  or  severally  belonging  to  its  people,  as  a  human  so- 
ciety, are  subject  to  its  laws  and  may  justly  claim  its  protection.  But  tliey 
are  not,  in  contemplation  of  law,  any  portion  of  the  body-politic  known  and 
recognized  as  the  State.  On  princii)le,  it  must  be  quite  clear  that  the  body- 
politic  is  composed  of  those  who  by  the  futidaniental  law  are  the  source  of 
all  political  power  or  official  or  governmental  authority."  Citing  Luther  v. 
Borden  as  illustrating  this. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  149 

Corporate  Responsibility  of  the  People  of  a  State. 

a  State  of  the  United  States,  and  to  be  loyal  towards  the 
government  of  the  United  States,  in  feeling,  action  being 
impossible,  would  seem  too  absurd  for  sober  statement,  if 
it  had  not  actually  been  presented  in  various  shapes  in 
political  declarations  and  forensic  discussion.^ 

The  reconstruction  policy  of  Congress  was,  by  some, 
supported  on  the  idea  of  finding  the  proper  subject  for  re- 
ceiving the  benefit  of  the  constitutional  guarantee  to  a 
State  of  a  republican  government  in  such  citizens  or  single 
citizen  as  might  be  supposed  not  to  hayeforfeited  his  per- 
sonal sovereign  rights  by  rebellion. ^ 

A  doubt  as  to  the  position  actually  taken  by  the  political 
people  of  the  State,  as  an  integer,  was  most  apparent  in 
the  case  of  Tennessee  ;  where  the  eastern  portion  was 
mainly  occupied  by  those  who  were  opposed  to  the  at- 
tempted secession.      But,  in  Keith  v.   Clark,  this  is  not 

1  Brownson  Am.  Rep.  341.  "  The  theory  on  which  the  government  at- 
tempted to  reorganize  the  disorganized  States  rested  on  two  false  assump- 
tions :  first,  that  the  people  are  personally  sovereign ;  and  second,  that  all 
the  power  of  the  Union  vests  in  the  general  government.  The  first,  as  we 
have  seen,  is  the  principle  of  so  called  'squatter  sovereignty'  embodied  in 
the  famous  Kansas-Nebraska  Bill,  which  gave  birth,  in  opposition,  to  the 
Republican  party  of  1856.  The  people  are  sovereign  only  as  the  State,  and 
the  State  is  inseparable  from  the  domain.  The  Unionists  without  the  State 
government,  without  any  State  organization,  could  not  hold  the  domain, 
which,  when  tlie  State  organization  is  gone,  escheats  to  the  United  States, 
that  is  to  say,  ceases  to  exist.  Tlie  American  democracy  is  territorial,  not 
personal." 

2  Whatever  may  have  been  Mr.  Lincoln's  plan  for  restoring  "  the  States 
in  rebellion  to  their  proper  practical  relations  to  the  Union  "  (ante,  p.  37),  he 
also  supposed  the  existence  of  an  "  element "  in  those  States  loyal  enough 
to  accept  the  guarantee.     See  Message  of  Dec.  8,  18G3,  ante,  p.  36. 

Mr.  Justice  Harlan,  in  Keith  v.  Clark,  7  Otto,  481,  says  of  "  the  usurping 
State  government," —  "  which  government,  at  that  time,  was  regarded  by 
the  mass  of  the  people  of  Tennessee  as  established  upon  a  firm  and  enduring 
foundation."  Yet  on  the  next  page  of  the  report  he  says,  —  "  When  there- 
fore the  people  of  Tennessee  who  recognized  the  authority  of  the  United 
States  assembled  by  their  delegates  in  Convention  in  January,  1865."  It 
may  then  be  inferred  that  this  latter  "  people  of  Tennessee  who,"  &c.,  were 
not  "  the  mass  of  the  people  of  Tennessee,"  &c.  See  also  extracts  from  the 
same  opinion,  ante,  pp.  28,  29. 


150  PRACTICAL   RECOGNITION   OF   THE   THEORY. 

Nature  of  tlie  Demonstratiou. 

mentioned  at  all,  in  any  opinion,  as  an  exceptional  element 
in  the  case,  and  the  general  intention  of  each  Justice  seems 
to  be  to  present  an  argument  equally  applicable  to  any 
other  of  the  eleven  States. 

In  the  first  and  second  chapters  of  this  essay,  I  have 
marshalled  the  leading  statements  made,  as  to  the  status  of 
the  eleven  States,  by  those  who  have  had  the  best  right  to 
speak  in  the  name  of  the  sovereign,  whoever  that  sovereign 
may  have  been,  who  prevailed  in  the  civil  war  as  against  a 
rebellion. 

But,  as  may  ajDpear  from  the  conclusion  of  the  second 
chapter,  I  despair  of  framing  on  those  statements  a  con- 
sistent political  theory,  correspondent  to  the  facts  as  a 
law  is  correspondent  to  legal  rights  and  obligations. 

Yet  as  the  question  relates  to  matter  of  political  fact  and 
not  to  matter  of  laiv^  the  action  of  which  those  statements 
are  the  record  may  indicate  some  theory,  beyond  the  do- 
main of  law,  adequate  to  the  support  of  such  political 
action,  which  will  or  must  be  now  accepted  as  fact,  what- 
ever may  liave  been  the  language  used. 

The  political  effect  here  attributed  to  the  transaction 
expressed  by  tlie  State  ordinances  of  secession,  accompanied 
by  resistance  to  the  authority  of  the  general  government, 
follows  logically  from  that  actual  possession  of  sovereign 
power  under  which  tlie  written  Constitution  became  public 
law.  But  I  do  not  here  speak  of  something  to  be  acee])ted, 
as  the  solution  of  the  political  and  legal  problems  whicli 
have  arisen  from  that  transaction,  merely  because  it  is  sucli 
a  logical  conclusion.  I  speak  of  something  Avhich,  having 
take7i  place,  has,  in  reality  and  in  spite  of  disguises,  been 
accepted  as  a  political  fact  by  the  government  and  people  of 
the  United  States  ;  and  I  say  that,  from  this  stand-j)oint, 
the  action  of  the  government  in  suppressing  the  rebellion 
and  in  the  reconstruction  methods  can  be  justified  as  consti- 
tutional, that  is,  as  correspondent  to  pre-existing  political 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  151 

A  Transfer  of  Sovereignty. 

conditions ;  while,  from  any  other,  it  is  justifiable  only 
as  successful  usurpation  is  justified  by  success.  To  demon- 
strate this  according  to  the  conditions  under  which  the 
political  question  is  now  presented,^  I  propose  to  show  how 
cases  at  law,  as  they  have  actually  been  decided,  like  those 
cited  in  Chapters  I.  and  II.,  can  be  reconciled  with  this 
doctrine  ;  and  how  the  same  doctrine  may  justify,  more 
intelligibly  and  consistently  than  can  be  done  on  any  other 
basis,  the  action  of  the  government  in  reference  to  belliger- 
ency and  treason  ;  and,  finally,  how  it  may  appear  to  have 
been  applied,  substantially,  in  the  political  action  of  the 
government,  by  its  several  departments,  in  reference  to 
reconstruction. 

At  the  moment  of  the  change  of  jDcrsons  holding  the 
sovereignty  over  such  territory  and  population  which, 
according  to  this  view,  had  occurred,  the  local  institutions 
and  established  organs  of  government  continued,  as  legal 
institutions,  by  the  general  principle  of  the  continuation 
of  laws,  but  then  and  thereafter  derived  their  validity  from 
a  different  political  authority,  that  is,  from  the  sovereignty 
then  vested  exclusively  in  the  United  States,  that  is,  the 
other  States  continuing  voluntarily  in  Union  ;  a  political 
authority  sustaining  and  producing  legal  relations,  rights, 
and  duties,  so  far  as  they  might  be  relations,  rights,  and 
duties  not  antagonistic  to  that  sovereign  riglit.^ 

1  Brownson,  Am.  Rep.  310.  "  It  is  in  some  measure  characteristic  of  the 
American  government  to  understand  liow  things  ougiit  to  be  done  only  when 
they  are  done  and  it  is  too  late  to  do  them  in  the  right  way.  Its  wisdom 
comes  after  action,  as  if  engaged  in  a  series  of  experiments." 

2  Brownson,  Am.  Rep.  306.  "  Another  reason  why  the  doctrine  that 
State  secession  is  State  suicide  has  appeared  so  offensive  to  many  is  the  sup- 
position entertained  at  one  time  by  some  of  its  friends,  tliat  tlie  dissolution 
of  the  State  vacates  all  rights  and  franchises  held  under  it.  But  this  is  a 
mistake.  The  principle  is  well  known,  and  recognized  by  the  jurisprudence 
of  all  civilized  nations,  that  in  the  transfer  of  a  territory  from  one  territorial 
sovereign  to  another,  the  laws  in  force  under  the  old  sovereign  remain  in 
force  after  the  change  till  abrogated  or  others  are  enacted  in  their  place  by 
the  new  sovereign,  except  such  as  are  necessarily  abrogated  by  the  change 


152         PRACTICAL  RECOGmTION   OF   THE   THEORY. 
Continuation  of  Sovereignty  in  the  United  States. 

The  legal  effect  which  took  place  in  this  instance  was 
such  as  occurs  whenever  territory  and  population  pass  from 
one  sovereign  to  another,  as  either  by  conquest  or  cession 
under  treaty  arrangements  made  between  nations  without 
reference  to  the  clioice  of  the  inhabitants  of  such  territories. 
The  laws,  that  is  the  municipal  law,  distinguished  either 
as  public  or  private,  of  the  ceded  or  conquered  territory 
remain  in  force,  though  they  derive  their  actual  authority 
from  a  different  political  personality.  In  the  instance  of 
these  States,  the  local  government  was  still,  as  to  its  formal 
organization,  like  that  of  any  one  of  the  United  States, 
but,  in  its  essential  legitimacy,  it  was  the  government  of  an 
organized  Territory  of  the  United  States. 

The  consequence  here  ascril)ed  to  the  action  of  the 
political  people  of  a  State  in  this  rebellion  may  be  con- 
ceived of  as  possibly  occurring  without  any  accompan3ing 
acts  of  resistance  to  the  government  of  the  United  States, 
as  organized  at  the  time.  The  case  might  be  supposed, 
that  the  political  people  of  a  State  should,  merely  by  their 
wow-action  in  political  relations,  cease  to  participate  as  a 
State  in  the  general  or  national  exercise  of  power. 

In  the  present  instance,  however,  while  the  political 
people  of  each  of  these  States  ceased  to  share  sovereignty 
as  one  of  the  United  States,  the  individual  persons  who 
had  constituted  that  people,  supported  by  the  rest  of  the 
local  community,  controlled  all  local  organization  by  revolu- 
tionary force,  and,  through  their  acting  officials,  made  it 
their  instrument  for  separating  the  territory  and  population 
from  the  actual  sovereign,  that  is,  from  the  other  States 
which  then,  exclusively,  constituted  the  United  States. 

itself  of  the  sovereifin,  not,  indeed,  because  tlie  old  sovereign  retains  any 
autliorit}',  but  because  such  is  presumed  by  the  courts  to  be  the  will  of  the 
new  sovereign.  The  principle  applies  in  the  case  of  the  death  of  a  State  in 
the  Union.  The  laws  of  the  State  are  territorial  till  abrogated  by  competent 
authority,  remain  tlie  lex  loci,  and  are  in  fidl  force.  All  that  would  be 
vacated  would  be  the  piil)lic  rights  of  the  State,  and  in  no  case  the  i)rivate 
rights  of  citizens,  corporations,  or  laws  affecting  them." 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  153 

Of  Governments,  as  Usurping  or  Illegal. 

The  individual  persons  who  did  this,  that  is,  the  officials 
and  all  who,  as  electors,  supported  them  as  a  government, 
therefore  usurped  government,  and,  in  so  doing,  committed 
treason,  or  what  would  be  treason  in  any  other  country  in 
the  world ;  independently  of  bringing  themselves  within 
the  .constitutional  definition  of  treason,  by  "  levying  war  " 
against  the  United  States,  "  adhering  to  their  enemies, 
giving  them  aid  and  comfort." 

But  the  terms  "usurping  governments,"  "  illegal  gov- 
ernments," are  misleading  terms  as  used  in  this  connection.^ 
If  the  term  government  is  used  to  designate  the  persons 
who,  as  State  officials,  administered  the  government  of 
these  States,  they,  as  usurpers  of  political  power,  consti- 
tuted a  "usurping  government."  As  they  individually 
and  personally  may  have  been  sworn  to  support  the  Consti- 
tution of  the  United  States,  they  committed  perjury,  and, 
whether  so  sworn  or  not,  treason  also,  within  the  Constitu- 
tional definition.  But  the  State  government,  in  the  concrete, 
is  not  under  any  law  but  that  which  emanates  from  the 
political  people  of  the  State  whose  instrument  it  is.  If 
they  sustain  it  with  their  votes,  it  is  absurd  to  say  that 
their  government  has  been  usurped.  It  is  this  political 
people  who  are  the  party  taking  the  consequences  of  their 
own  political  choice.  Government,  as  act,  cannot  be  usurp- 
ing or  illegal.  It  is  neither  legal  nor  illegal.  Illegal  gov- 
ernment is  contradiction.  So  far  as  it  is  government  it  is 
not  illegal  action,  and  so  far  as  it  is  illegal  action  it  is  not 
government. 

The  usurpation  which  actually  occurred  was  therefore 
not  of  the  government  of  a  State  of  the  United  States,  nor 
usurpation  as  against  a  loyal  people  of  a  State.  It  was 
the  usurpation  of  that  government,  as  over  the  Territories 
of  the  United  States,  which  is  vested  in  Congress.  The 
legitimate  authority  of  Congress,  as  representing  the  United 

^  Compare  the  citations  from  opinions  in  Keith  v.  Clark,  ante,  pp.  28-33. 


154  CONTINUATION   OF   LEGAL   RELATIONS. 

Doctrine  of  Legal  Relations  under  State-lapse. 

(other)  States,  over  such  territory  and  its  population  was, 
for  the  time,  obstructed  by  domestic  insurrection,  rebellion, 
and  civil  war,  as  might  be  that  of  any  sovereign,  under 
any  form  of  government.^ 

The  relations  of  ordinary  civil  or  social  life  continued, 
and  new  rights  and  obligations  continued  to  arise  ;  ^  as 
would  have  been  the  case  under  whatsoever  persons  might 
there  actually  exercise  power ;  who  would  either  be  sus- 
tained as  a  new  sovereign  (by  successful  revolution ;  in 
which  case  there  would  have  been  an  end  of  our  ques- 
tions), or  be  regarded  as  locum  tenens  for  the  actual  pos- 
sessor of  sovereignty,  that  is,  the  people  of  the  (other) 
States  united.  All  would  have  been  valid  that  could  have 
been  valid,  had  the  rebellion  occurred  in  an  organized  ter- 
ritorj^  never  having  been  received  as  a  State. 

The  question  of  legal  rights  and  obligations,  in  ti-ansac- 
tions  occurring  under  the  continuance  of  this  usui'pation, 
would  thereafter  arise  for  judicial  determination,  after  the 
re-establishment  of  the  national  authority ;  as  in  the  case 
Keith  V.  Clark,  and  other  cases  cited  in  the  first  chapter. 

Admitting  the  propriety  of  speaking  of  the  State  gov- 
ernments as  usurping  governments^  whether  according  to 
the  view  stated   in    the  dissenting  opinions   in   Keith  v. 

1  Brownson,  Ana.  Rep.  307  (immediately  following  the  pas.sage  last  cited). 
"  But  the  same  conclusion  is  reached  in  anotiier  way.  In  the  lapse  of  a  State, 
or  its  return  to  the  condition  of  a  Territory,  there  is  really  no  change  of  sover- 
eignty. The  sovereignty,  both  before  and  after,  is  in  the  United  States. 
The  sovereign  authority  that  governs  in  the  State  government,  though  inde- 
pendent of  the  general  government,  is  the  United  States.  The  United 
States  govern  certain  matters  through  a  general  government,  and  others 
through  particular  State  governments.  The  private  rights  and  interests 
created,  regulated,  or  protected  by  the  particular  State  are  created,  regulated, 
or  protected  by  the  United  States,  as  much  and  as  plenarily  as  if  done  by 
the  General  Government,  and  the  State  laws  creating,  regulating,  or  protect- 
ing them  can  be  abrogated  by  no  power  known  to  the  Constitution,  but 
either  the  State  itself  or  the  United  States  in  convention  legally  assembled." 

2  Williams  v.  Bruffy,  6  Otto,  192.  Horn  v.  Lockhart,  17  Wall.  570.  As 
to  continuation  of  the  State  laws  in  Georgia,  after  appointment  of  a  military 
governor,  see  Ketchum  v.  Buckly,  'J  Utto,  188. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  155 

1 

Bearing  of  Opinions  in  Keith  v.  Clark. 

Clark,  or  that  which  has  been  presented  in  this  chapter, 
still  it  seems  that  a  general  presumption  in  favor  of  the 
validity  of  all  acts  of  any  de  facto  government  should  ap- 
ply, so  far  as  to  throw  on  the  party  denying  the  claim  the 
obligation  of  alleging  and  offering  some  prima  facie  evi- 
dence that  the  transaction  whose  validity  was  contested 
had  been  in  aid  of  the  rebellion.  So  that  the  view  taken 
in  the  opinion  of  the  court  on  this  point  ^  may  be  sustained, 
independently  of  its  political  doctrine  as  to  the  nature  of 
the  Union,  or  even  accepting  any  which  may  have  been 
preferred  by  any  of  the  dissenting  members. 

In  the  opinion  delivered  by  Mr.  Justice  Miller,  for  the 
court,  in  Keith  v.  Clark,  the  State  of  Tennessee  is  placed 
on  the  same  plane  with  nations  in  general,  such  as  Vattel, 
Wheaton,  and  others  regard  as  subjects  of  rights  and  duties 
under  international  law.^  It  may  appear  from  other  testi- 
mony adduced  in  the  first  and  second  chapters,  that,  so  far 
as  the  use  of  words  and  phrases  indicates  the  nature  of  the 
acts  which  they  accompany  or  which  they  are  intended  to 
describe,  a  similar  belief  in  the  position  of  the  States  of  the 
confederacy  had  been  more  or  less  clearly  accepted  by  all 
branches  of  the  government,  and  probably  also  by  a  vast 
majority  of  its  supporters. 

But  however  iniquitous,  on  the  part  of  either  belligerent, 
an  international  war  may  be  by  reason  of  the  political  in- 
tentions of  such  belligerent,  there  can  be  no  resulting  al- 
teration in  the  validity  of  relations  existing  between  the 
private  citizens  who  owe  political  allegiance  to  such  bellig- 
erent. There  can  be  no  original  illegality,  from  the  nature 
of  the  consideration,  in  contracts  made  by  the  government 
of  such  belligerent  with  its  own  citizens  in  supporting  its 
cause  against  the  other  belligerent  party.  Nor  can  defeat 
have   the  effect  of  making  such  contracts  illegal.      We 

1  7  Otto,  466,  ante,  p.  27. 

a  Ante,  p.  24;  7  Otto,  459,  460. 


156  CONTINUATION   OF   LEGAL  RELATIONS. 

Presumption  in  favor  of  a  Local  Government. 

might,  indeed,  conceive  of  a  treaty  stipulation  to  which 
the  victor,  at  the  end  of  a  war,  had  compelled  the  defeated 
nation  to  agree,  binding  the  latter  to  repudiate  all  obliga- 
tions to  its  own  citizens  incurred  under  such  a  contract,  or  to 
annul  all  contracts  between  its  citizens  made  with  the  view 
of  resisting  the  victor  as  a  public  enemy,  while  the  war 
was  still  pending.  But  it  would  certainly  be  for  the  party 
relying,  in  a  suit  at  law,  on  the  effect  of  this  arrange- 
ment, to  plead  it  and  to  adduce  proof  to  bring  within  its 
terms  any  contract  which  might  be  the  subject  of  such 
suit.  In  other  words,  the  presumption  would  be  in  favor 
of  the  legality  of  any  relation  admitted  to  have  had  sanc- 
tion in  the  authority  of  the  defeated  nation. 

If  then  the  eleven  States  are  regarded  as  conquered  na- 
tions, it  would  seem  that  no  court  of  law  can  admit  a  pre- 
sumption against  the  validity  of  any  relation,  as  legal, 
which  may  be  attributed  to  the  authority  of  one  of  tlie 
compromised  States  ;  or  that,  in  other  words,  the  presump- 
tion must  be  taken  to  be  in  favor  of  its  validity ;  as  was 
affirmed  by  the  majority  in  Keith  v.  Clark,  and  had  been 
by  the  court  generally,  in  earlier  cases. -^ 

More  clearly  this  would  be  the  case  if  the  legal  relation 
in  question  arose  from  the  exercise  of  one  of  the  "  reserved 
powers,"  such  as  the  power  to  establish  a  bank,  and  not 
from  a  power  not  exercised  by  the  States  severally,  but  l)y 
the  general  government,  and  icsurped  during  the  rebellion, 
according  to  Mr.  Justice  Bradley's  view.     Ante.,  p.  31. 

But  these  arguments,  which  agree  in  sustaining  rights 
and  obligations  derived  from  the  local  authority  of  any  one 
of  the  eleven  States,  would  not  accord  also  in  their  applica- 
tion to  such  as  could  only  be  attributed  to  the  legislative 
action  of  the  Confederate  government.  According  to  the 
view  here  taken  of  the  effect  of  the  secession  ordinances, 
this  so-called  government,  which  professed  to  exist  only  as 

1  Ante,  p.  7. 


THEORY  OP  OUR   NATIONAL  EXISTENCE.  157 

Presumption  against  tlie  Confederate  Government. 

the  eleven  States  might  be  in  existence,  came  into  being 
only  after  these  States  had  lapsed  into  the  Territorial  con- 
dition in  relation  to  the  government  of  the  United  States. 
It  was  therefore,  under  any  aspect,  legal  or  political,  an 
insurrectionary  government  and  de  facto  belligerent,  and 
sliould  have  been  accepted  as  such  by  all  the  world,  and 
as  having  no  claim  to  political  recognition  except  such  as 
might  be  derived  from  a  subsequent  revolutionary  success. 
Many  acts  done  under  its  actual  force  must  now  be  accept- 
ed as  beyond  the  pale  of  legal  remedy,  having  been  settled 
by  the  vis  major,  independently  of  the  legal  consequences 
to  parties  never  within  its  temporary  jurisdiction,  arising 
from  its  temporary  belligerency.^  So  that  this  view  would 
be  in  harmony  with  the  decisions  of  the  Supreme  Court  on 
this  point ;  whether  those  decisions  deny  any  possible  val- 
idity to  claims  founded  on  such  authority,  or  are  merely  to 
the  effect  that  any  claim  founded  on  its  legislative  action 
must  be  pleaded  under  a  presumption  against  its  legal 
validity. 2 

But  this  limitation  can  be  logically  sustained  only  on 
the  idea  of  State-lapse  or  State-suicide. 

For  if  the  view  taken  in  the  opinion  of  the  court  by  Mr. 
Justice  Miller,  in  Keith  v.  Clark,  which  recognizes  the 
States  of  the  Confederacy  as  so  many  nations  in  alliance, 
is  to  be  accepted,  the  Confederate  government  could  only 
be  regarded  as  their  agent,  asserting  power  and  claiming 
obedience  as  the  representative  of  each  of  such  States. 

The  provision  in  the  Constitution  forbidding  "  any  State 

1  As  in  cases  of  insurance  of  vessels  destro3'ecl  by  confederate  cruisers. 
See  Mauran  v.  Ins.  Co.,  6  Wall.  1  ;  Opinion  of  the  majority  of  the  Court  de- 
livered by  Nelson,  J. :  Chase,  Ch.  J.,  and  Swayne,  J.,  dissenting.  It  may  be 
surmised  that  a  difference  of  view  as  to  the  nature  of  a  State  of  the  Union 
was  at  tlie  root  of  tlie  want  of  agreement  in  these  cases,  as  in  many  otliers 
before  the  Supreme  Court. 

-  Compare  ante,  p.  7,  and  notes ;  and  the  opinions  in  Ford  v.  Surget,  7 
Otto,  594,  noticed  ante,  p.  61,  n.  2. 


158  CONTINUATION   OF   LEGAL   EELATIONS. 

Operation  of  the  Argument  from  Public  Policy. 

from  entering  into  any  agreement  or  compact  with  another 
State  "  must  indeed  be  taken  to  have  imposed  an  obligation 
upon  these  States  as  political  persons,  if  they  continued  to 
exist  as  such.  But  liere  the  question  is  of  political  ca- 
pacity, not  of  legal  right.  The  provision  itself  is  a  recogni- 
tion of  the  capacity.  If  the  case  is  to  be  regarded  as 
analogous  to  the  breach  of  a  treaty  agreement  between  in- 
dependent nations,  it  is  difficult  to  see  how  private  indi- 
viduals, whose  rights  of  person  or  of  jiroperty  may  have 
been  affected  by  a  State's  violation  of  this  obligation, 
should  be  held  responsible. 

It  might  be  suggested  that  in  refusing  to  recognize 
claims  founded  on  the  legislative  authorit}^  of  such  "  rebel 
governments,"  or  "  unlawful  governments,"  or  "  usurping 
governments,"  the  judiciary  may  possibly  be  benefiting  one 
rebel  at  the  expense  of  another.  It  is  probably  argued 
that  this  judicial  refusal  to  recognize  the  validit}'  of  the 
contract  is  founded  on  motives  of  public  policy,^  to  serve 
as  a  warning  for  the  future  against  rebellion,  as  contracts 
on  an  immoral  consideration  are  held  void,  where  each 
party  has  been  in  pari  delicto.  The  analogy,  however, 
is  not  complete.  In  the  case  of  suit  for  articles  of  mer- 
chandise used  in  aid  of  the  rebellion,^  a  refusal  to  enforce 
the  contract  might  benefit  a  traitor  at  the  expense  of  an 
innocent  party.  If  the  individuals  who  respectively  made 
the  population  of  the  States  of  Texas  and  Tennessee  at  the 
dates  of  the  reconstruction  of  those  States,  were,  in  each 
case,  as  a  mass  of  persons,  the  same  as  those  who  supported 
the  rebellion,  then  the  recovery  on  the  bonds  sold  for  the 
State  of  Texas  inured,  as  the  repudiation  of  the  notes  of 
the  Bank  of  Tennessee  would  have  inured,  to  the  benefit 


1  See  opinion  of  the  court  by  Miller,  J. ,  and  separate  opinions  by  Clifford 
and  Davis,  JJ.,  in  Sprott  v.  United  States,  20  Wall.  461. 

2  See  cases  like  Hanauer  v.  Doane,  12  Wall.  345 ;  Hanauer  v.  Woodruff, 
15  Wall.  439. 


THEORY   OF   OUR   NATIONAL    EXISTENCE.  159 

Of  Claims  accruing  to  the  United  States. 

of  SO  many  rebels  or  traitors,  though  the  bonds  in  one  case 
and  the  notes  in  the  other  might  have  passed  into  the 
hands  of  parties  always  loyal  in  feeling  to  the  United 
States.  The  reasoning  which  distinguishes  two  different 
moral  beings,  in  the  single  political  personality  whose 
rights  and  obligations  are  in  .question,  savors  of  the  subtle- 
ties of  the  schoolmen  of  the  middle  ages.^ 

As  the  legal  rights  and  obligations  of  private  persons 
would  not  cease  to  subsist,  when  this  change  of  sovereignty 
by  State-lapse  or  State-suicide  occurred,  so  rights  and 
obligations  would  also  continue  in  relations  to  which  the 
State  itself  had  been  a  party.  The  political  person  who 
took  the  place  of  the  State  and  who,  in  that  case,  would 
have  been  the  United  States  represented  by  the  general 
government,  would  have  succeeded  to  any  rights  and  obli- 
gations which  such  State  could  have  claimed  or  owed. 
The  difference  would  be  in  the  forum  in  which  such  rights 
and  obligations  should  be  maintained  or  enforced.  Thus, 
under  the  circumstances  on  which  the  case  of  Texas  v. 
White  was  founded,  the  United  States  should  have  taken 
the  plaintiff's  place.  There  would  have  been  no  State  of 
Texas  to  appear  by  original  bill,  but  the  United  States 
could  have  proceeded  in  the  subordinate  courts,  subject  to 
the  appellate  jurisdiction  of  the  SujDreme  Court.^ 

A  decision  on  the  merits  in  a  case  of  this  sort  would 
seem  to  turn  on  the  inquiry  whether  the  transfer  of  prop- 
erty really  belonging,  at  the  time,  to  the  United  States 
as  successor  to  the  lapsed  State,  could  convey  a  valid  title  ; 
and  this  would  appear  to  depend,  not  simply  upon  the 
question  whether  this  usurping  government  of  a  Territory^ 
which  it  would  be,  could  sell  such  property ;  nor  yet  upon 

1  See  Mr.  Justice  Grier  on  the  plea  of  "  insanity,"  ante,  p.  17 ;  and  Mr. 
Justice  Miller  on  "  logical  legerdemain,"  p.  24.  The  argument  for  denying 
the  moral  identity  of  the  communities  whose  rights  and  obligations  were  in 
question  might  be  called  the  converted-sinner  argument. 

2  Const.  Art.  iii.,  sec.  2. 


160  BEARING  OF  DECIDED   CASES. 

Irrelevancy  of  White  v.  Hart. 

the  application  of  the  proceeds ;  but,  whether  the  pur- 
chaser took  the  property,  not  in  the  ordinary  course  of 
trade  in  such  securities,  but  with  the  intention  to  defraud 
the  real  owner,  the  United  States.^ 

The  question  which  was  presented  in  White  v.  Hart, 
ante,  p.  19,  had,  on  the  merits,  no  necessary  connection 
with  the  rebellion.  It  might  have  arisen  by  the  introduc- 
tion of  a  clause,  such  as  that  on  which  the  case  depended, 
into  the  constitution  of  any  State  in  which  slaver}^  had  just 
ceased  to  exist.  Or  the  same  question  might  equally  have 
arisen  in  the  case  of  a  Territory  in  which  slavery  had  ex- 
isted until  admitted  as  a  State  under  a  constitution  con- 
taining a  similar  clause.  The  question  then  would  have 
been  the  same  under  the  theory  here  presented  ;  which  sup- 
poses Georgia,  before  readmission  under  the  Constitution 
of  1868,  to  have  been,  in  reality,  only  a  Territory  of  the 
United  States.  The  decision  actually  arrived  at  by  the  ma- 
jority of  the  court  might  have  been  the  same  under  this  view. 

Strictly  speaking,  therefore,  there  was  no  need  to  dis- 
cuss the  question  presented  by  the  allegations  in  the  pleas 
which  related  to  the  political  validity  of  those  transactions 
which  had  led  to  the  adoption  of  the  clause  in  the  State 
Constitution,  and  which  are  known  as  Reconstruction,  and 
which  the  court  accepted,  either  for  law  or  fact,  on  the 
authority  of  the  "  political  department." 

The  questions  which  are  here  considered  as  they  might 
have  presented  themselves  under  that  doctrine  of  State- 
lapse  or  State-suicide  which  is  here  propounded,  arose  in 
those  cases  before  the  Supreme  Court  wliicli  were  cited  to- 
gether in  the  first  chapter  as  bearing  directly  on  the  ques- 
tion of  the  continuance  or  non-continuance  of  political 
existence  in  the  case  of  the  eleven  States  compromised  by 

•  The  result  of  this  view  would  seem  to  ap^ree  with  the  actual  judgment 
in  Texas  v.  Wliite,  ante  p.  15,  and  with  the  language  of  AVaite,  Ch.  J.,  in 
Huntington  v.  Texas,  IG  Wall.  413. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  161 

Belligerency  and  Treason ;  how  Considered. 

the  rebellion.  Other  cases,  before  the  same  court,  involv- 
ing questions  on  belligerency  and  treason  were  cited  in 
the  second  chapter,  as  also  necessarily  considered  in  review- 
ing judicial  opinion  on  the  same  question  of  the  status  of 
those  States. 

It  is  then  proper  to  consider  here  how  questions  of  these 
two  classes  would  present  themselves  under  this  doctrine 
of  State-lapse  or  State-suicide,  as  here  advanced. 

As,  according  to  the  view  here  taken  of  the  political 
effect  of  secession  ordinances  followed  by  war,  there  was 
no  longer  any  possession  of  sovereignty  by  the  political 
people  of  these  eleven  States,  there  were  none  who,  in 
these  actual  Territories,  could  be  recognized  as  belligerent 
in  virtue  of  political  capacity  to  engage  in  war.^ 

Any  recognition  of  those  States  as  the  belligerent  party 
involves  the  attribution  of  sovereignty  to  each  of  those 
States  severally .2  Those  therefore  who,  at  that  time,  ad- 
ministered the  executive,  legislative,  or  judicial  functions 
of  the  government  of  the  United  States  could  not,  consis- 
tently with  the  attitude  of  that  government  towards  the 
rebellion,  make  such  a  recognition ;  nor  could  they  by  any 
such  recognition  as  they  may  have  made  during  the  war, 
bind  the  United  States,  that  is,  the  other  States  in  union 
—  the  actual  sovereign ;  though,  in  the  case  that  the  Con- 
federacy had  been  successful  in  establishing  the  separate 

'  If  it  be  conceded  that  the  eleven  States  continued  to  exist  as  States, 
political  personalities,  an  argument  for  recognizing  their  belligerent  capacity 
might  be  drawn  from  the  very  clause  in  the  Constitution  which  declares  that : 
"  No  State  shall,  without  the  consent  of  Congress,  .  .  .  keep  troops  or  ships 
of  war  in  time  of  peace,  ...  or  engage  in  war,  unless  actually  invaded  or 
in  such  imminent  danger  as  will  not  admit  of  delay."  Art.  i.,  sec.  10,  2. 
The  capacity  of  each  State  to  appear  before  the  world  as  a  belligerent  power 
is  here  indicated  by  the  prohibition  against  its  use  in  certain  cases.  Com- 
pare the  comment  on  this  clause  in  Von  Hoist,  i.  259,  260,  in  connection  with 
the  action  of  Massachusetts  in  1814. 

2  Mr.  B.  T.  Johnson,  in  his  preface  to  Chase's  Decisions,  argues  for  this 
as  the  consequence  of  the  actual  recognition  of  a  state  of  belligerency.  See 
ante,  p.  52. 


162  CONSIDERATIONS   ON  BELLIGERENCY. 

Distinctions  in  recognizing  Belligerency. 

existence  of  its  members,  that  fact  could  have  been 
accepted  by  the  government  of  the  United  States,  as  any 
political  fact  is  accepted  by  all  the  world. 

But  belligerency  can  be  recognized  in  an  actual!}^  exist- 
ing military  force,  independently  of  recognition  of  any 
political  personality  as  one  whose  right  of  dominion  in- 
volves capacity  to  send  its  subjects  or  citizens  into  the  field, 
with  the  rights  and  duties  defined  by  international  usage. 
Belligerency  has  been  rej)eatedly  recognized  in  civil  wars, 
among  all  civilized  nations.  A  certain  amount  of  power 
to  maintain  the  field,  as  against  a  government  already  ex- 
isting, requires  recognition  as  a  belligerent  force.  This  is 
a  recognized  principle  of  the  modern  jus  gentium  and  jus 
inter  gentes} 

The  recognition  of  belligerency  in  the  southern  military 
forces  under  the  command  of  General  Lee  or  of  General 
Jefferson  Davis,  as  actual  commander-in-chief,  whether 
made  by  the  President  of  the  United  States,  as  commander- 
in-chief  on  the  part  of  the  government,  or  by  the  generals 
in  the  field,  or  by  Congress,  did  not  involve  recognition 
of  the  eleven  States  as  still  holders  of  sovereignty,  under 
any  theory,  either  as  in  severalty  or  in  union,  as  States  of 
the  United  States.^ 

1  riiilliniore,  Int.  Law,  ii.  p.  143.  Compare  Wheaton,  Int.  Law,  Dana's 
ed.  p.  34  ;  Lawrence's  ed.  p.  39,  and  the  notes  of  tlie  American  editors. 

It  is  said,  in  the  opinion  for  the  court  by  Mr.  Justice  Field  in  Williams 
V.  Bruffy,  0  Otto,  176,  186,  187:  "  Wlien  a  rebellion  becomes  organized  and 
attains  such  proportions  as  to  be  able  to  put  a  formidable  military  force  in 
the  field,  it  is  usual  for  the  established  government  to  concede  to  it  some 
belligerent  rights,  .  .  .  but  ...  to  what  extent  they  shall  be  accorded  to 
insurgents  depends  upon  the  considerations  of  justice,  humanity,  and  policy 
controlling  the  government."  The  idea  conveyed  by  the  last  clause  may  be 
questionable.  It  does  not  appear  how  hellicjerenry,  or  the  sum  of  the  powers 
which  distinguish  a  belligerent  power,  can  be  described  as  more  or  less ;  and 
in  case  of  civil  war  it  is  extorted  from  the  party  claiming  political  supremacy 
by  the  power  which  the  other  party  has  to  retaliate.  Tiie  distinction  which 
should  have  been  judicially  made  was  in  respect  to  the  personality  recognized, 
whether  States  belligerent  de  jure,  or  a  body  of  insurgents  belligerent  de 
facto, 

2  Compare  the  full  discussion  of  two  views  on  this  point  in  the  opiniona 


THEORY   OF  OUR    NATIONAL   EXISTENCE.  163 

Recognition  of  Belligerency  in  the  Prize  Cases. 

The  distinction  here  presented  may  seem,  at  first  sight, 
an  impractical  refinement,  —  a  distinction  without  a 
difference.^  It  was  undeniable  that  the  persons  who,  in 
their  official  capacity,  constituted  the  local  governments, 
whether  usurped  or  not,^  were  those  who,  through  the 
confederacy,  carried  on  the  war.  The  war  was  carried  on, 
on  the  part  of  the  population  in  rebellion,  by  means  of  the 
pre-existing  State  organizations.^ 

Or  it  may  now  be  more  correct  to  say  that  such  did,  at 
the  time.,  appear  to  be  an  unpractical  refinement,  and  that, 
afterwards,  some  who  had  apparent!}'  so  considered  it  may 
have  inclined  to  recognize  the  importance  of  having  neg- 
lected to  observe  this  distinction. 

Several  j)assages  from  the  opinions  delivered  in  the 
Supreme  Court  in  the  Prize  Cases,  2  Black,  660,  have 
already  been  cited,  ante,  pp.  49,  50,  as  indicating  a  recog- 
nition, by  the  court,  of  the  eleven  States  as  the  belligerent 
party. 

In  Williams   v.  Bruffy,  6  Otto,   187  (October,  1877), 

of  Justices  Harlan  and  Clifford,  agreeing  on  the  same  decision  of  the  case 
before  the  court,  in  Ford  v.  Surget,  7  Otto,  594. 

How  different  the  color  which  may  be  given  by  slight  differences  of  speech, 
even  by  persons  maintaining  similar  conclusions,  may  appear  by  a  com- 
parison of  Mr.  O'Conor's  argument,  in  the  case  of  Mr.  Davis,  with  that  of 
Mr.  W.  Green,  in  Keppel's  Admr.  v.  The  R.  R.,  both  fully  given  in  Mr.  B. 
T.  Johnson's  Chase's  Decisions.  Mr.  O'Conor's  argument  (pp.  115,  116) 
appears  to  be  limited  to  a  recognition  of  belligerency  only  to  the  extent  it 
might  be  made  in  case  of  revolutionary  war  in  a  country  under  an  integral, 
undistributed,  or  consolidated  government,  without  any  State  organizations 
like  our  own  ;  while  in  that  of  Mr.  Green  (pp.  175,  183),  the  intention  to 
present  the  Stales  as  the  personality  recognized  is  obvious. 

1  Or  what  some  would  call  a  "profitless  abstraction"  or  a  "pernicious 
abstraction."  Compare  aiite,  p.  43  [d\,  and  post,  the  beginning  of  Chapter 
VII. 

2  See  ante,  p.  153. 

3  It  was  this  existing  political  machinery  which  caused  the  war  to  have, 
ab  initio,  its  territorial  character,  independently  of  the  question  of  the  political 
existence  of  the  States.  But  that  this  territorial  character  did  not  depend 
upon  the  political  existence  of  the  States  was  shown  by  the  instances  of 
Western  "Virginia  and  Eastern  Tennessee. 


164  DISTINCTTOXS   IN   BELLIGERENCY. 

The  Supreme  Court,  in  tlie  Prize  Cases. 

it  was  said  by  Mr.  Justice  Field,   in  reference  to  those 
cases : — 

"  It  was  there  simply  held  that  when  parties  in  rebellion  had 
occupied  and  held  in  a  hostile  manner  a  portion  of  the  territory  of 
a  country,  declared  their  independence,  cast  off  their  allegiance, 
organized  armies,  and  commenced  hostilities  against  the  govern- 
ment of  the  United  States,  war  existed  ;  that  the  President  was 
bound  to  recognize  the  fact  and  meet  it,  without  waiting  for  the 
action  of  Congress;  that  it  was  for  him  to  determine  what  degree 
offeree  the  crisis  demanded,  and  whether  the  hostile  forces  were  of 
such  a  character  as  to  require  him  to  accord  to  them  the  character  of 
belligerents,  and  that  he  had  a  right  to  institute  a  blockade  of  ports 
in  their  possession  which  neutrals  were  bound  to  recognize." 

The  term  "  parties  in  rebellion  "  is  not  one  of  very  pre- 
cise meaning  in  such  a  connection.  It  may  be  questioned 
whether  it  is  any  better  suited  to  the  case  of  natural  per- 
sons in  rebellion  than  to  that  of  political  personalities  in 
rebellion.  But  the  doubt,  here,  is  whether  it  is  not  ratlier 
too  vague  a  term  to  be  adequate  to  describe  the  bearing  of 
the  decision  of  the  court  in  the  Prize  Cases. 

That  decision  was  also  referred  to  in  Ford  v.  Surget, 
6  Otto,  176,  in  the  opinion  of  the  court  delivered  bj'  Chief 
Justice  Waite,  in  which  it  is  said  :  — 

"  Without  attempting  to  state  all  the  reasons  assigned  in  the 
adjudged  cases  for  the  conclusions  herein  announced,  we  assume 
that  the  following  propositions  are  settled  by  or  plainly  to  be  de- 
duced from  our  former  decisions. 

"  1.  The  district  of  country  declared  by  the  constituted  author- 
ities, during  the  late  civil  war,  to  be  in  insurrection  against  the 
government  of  the  United  States  was  enemy  territory,  and  all  peo- 
ple residing  in  such  district  were,  according  to  public  law  and  for 
the  purposes  connected  with  the  prosecution  of  the  war,  liable  to 
be  treated  by  the  United  States,  pending  the  war,  and  while  they 
remained  within  the  lines  of  the  insurrection,  as  enemies,  without 
reference  to  their  personal  sentiments." 

Whether  these  two  statements  of  the  position  previously 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  165 

Statements  of  the  Bearing  of  the  Prize  Cases. 

taken  by  the  court  are  or  are  not  sufficiently  definite  in 
terms,  it  may  perhaps  be  said  with  truth  that  they  are 
clear  enough  to  indicate  all  that  the  court  was  competent 
to  recognize,  in  the  circumstances,  and  therefore  all  that  it 
ought  to  have  recognized.  But  whether  this  is  an  accurate 
description  of  the  view  of  the  facts  taken  by  the  court, 
during  the  war,  is  a  matter  on  which  there  may  always  be 
some  difference  of  opinion.^ 

The  cases  which,  together,  were  reported  as  the  Prize 
Cases,  were  of  four  vessels  seized  at  different  times  and 
places.  These  were  the  Amy  Warwick,  the  Crenshaw, 
the  Hiawatha,  and  the  Brillante. 

The  Hiawatha  and  the  Brillante  were  vessels  owned 
abroad,  and  in  their  cases,  the  question  was  as  to  the  rights 
of  blockade,  as  against  all  the  world,  and  not  merely  as 
against  citizens  of  the  eleven  States.    But  the  belligerency 

1  Compare  the  separate  opinion  delivered  by  Mr.  Justice  Clifford  in  Ford 
V.  Surget. 

In  connection  with  these  opinions  on  the  question  of  belligerency  may 
properly  be  cited  note  32  of  Mr.  Dana's  edition  of  Wheaton's  Int.  Law, 
part  i.,  §  50,  entitled  The  United  States  a  Supreme  Government,  which  compre- 
hends a  clear  statement  on  several  very  important  points  relating  to  the  civil 
war.  In  the  course  of  this,  p.  83,  it  is  said  :  "  The  States  in  rebellion  organ- 
ized a  central  government,"  &c.  In  the  sequel,  the  action  of  the  Confederate 
government  in  the  war  is  alone  spoken  of.  It  is  further  said :  "  The  United 
States  did  not,  of  course,  declare  war;  for  there  was  no  body-politic  against 
which  to  declare  it,  the  very  existence  of  the  Confederate  Government  being 
treason;  and  the  separate  States  could  not  be  regarded  as  capable  of  performing 
any  function  in  hostility  to  the  United  States.  The  state  of  things  was  treated 
as  a  rebellion  of  individuals,  risen  to  the  dimensions  of  a  war.  It  was  met 
by  the  exercise  of  the  powers  of  war  on  the  part  of  the  United  States,  prac- 
tically, and  for  the  purpose  of  suppressing  the  insurrection.  The  govern- 
ment did,  in  practice,  treat  the  rebels  as  belligerents  while  the  war  lasted, 
holding  them  as  prisoners  of  war,  making  use  of  exchanges  and  other  prac- 
tices of  war.  This  was  from  necessity,  to  prevent  retaliation,  and  from 
humanity.  No  general  status  of  belligerency  was  conceded  to  them  by  law, 
but  the  legal  status  of  each  person  engaged  in  the  rebellion  was  that  of  a 
■criminal  under  the  municipal  law." 

This  statement  appears  to  me  to  be,  like  those  in  the  two  cases  last  cited, 
—  wisdom  after  the  fact.  But  wisdom  after  the  fact,  though  it  may  be  the 
most  reliable  wisdom,  is  not  always  history. 


166  THE   DISTINCTION   IN   BELLIGERENCY. 

Case  of  the  Amy  Warwick. 

necessary  to  the  assertion  of  the  rights  of  blockade,  and 
maritime  search  for  and  capture  of  contraband  of  war,  had 
nothing  to  do  with  the  question  of  the  political  relation  be- 
tween the  government  of  the  United  States  and  the  popu- 
lations of  those  eleven  States.  The  case  would  have  been 
the  same  had  the  rebellion  occurred  under  a  consolidated 
or  unitary  form  of  government,  without  any  appearance  of 
a  federative  constitution,  and,  in  relation  to  these  rights  of 
our  government,  the  case,  as  to  the  rest  of  the  world,  was 
the  same  whether  the  antagonist  belligerent  was  a  political 
State  or  nation,  belligerent  de  jure,  or  only  an  insurrection- 
ary force,  belligerent  de  facto.  The  political  question  of 
the  status  of  the  States  could  remain  in  abeyance  during 
the  recognition  of  such  belligerency.^ 

The  Amy  Warwick  was  a  vessel  owned  by  citizens  and 
permanent  residents  of  Richmond,  Virginia,  with  a  cargo 
of  coffee,  belonging  in  part  to  such  citizens,  which  had 
been  captured  Aug.  10,  1861,  on  a  return  voyage  from  Rio 
Janeiro,  on  the  high  seas  by  a  vessel  of  war  of  the  United 
States.  The  vessel  and  cargo  had  been  libelled  as  prize  of 
war  by  the  captors  in  the  District  Court  of  the  United 
States  for  the  District  of  Massachusetts,  before  Judge 
Sprague,  and  a  decree  of  condemnation,  as  prize,  entered. 

In  the  opinions  delivered  by  Jiidge  Sprague  on  this  case, 
this  decision  is  placed  on  precisely  the  same  principles  as 
those  applying  to  captures  in  war  between  independent 
nations ;  and,  as  I  understand  his  expressions,  the  judge 
was  careful  to  recognize  the  State  of  Virginia  as  the  bel- 
ligerent, in  stating  the  foundation  of  his  argument.^ 

1  It  is  only  to  tlie  case  of  such  beUigerency  that  tlie  aiitliorities  npply 
which  were  cited  by  tlie  court,  2  Sprague,  13;],  and  by  counsel  for  tlie  libel- 
lants,  2  Sprague,  125,  2  Black,  654,  to  sustain  the  proposition  that  "  in 
internal  wars  it  is  competent  for  the  sovereign  to  exercise  belligerent  powers 
generally."    Compare  Nelson's  opinion,    ib.  GDO. 

'^  In  a  note  relating  to  this  case,  in  Mr.  Lawrence's  Wheaton's  Int.  Law, 
p.  63G,  the  editor  says  :  "  The  distinction  was  made  between  citizens  of  a  loyal 


THEORY. OF  OUR   NATIONAL   EXISTENCE.  167 

Judge  Sprague's  Recognition  of  the  Belligerent. 

On  page  136  of  2  Sprague's  Decisions,  Judge  Sprague 
said,  — 

"  In  cases  which  may  come  withiu  the  definition  of  civil  war, 
there  may  be  only  an  assemblage  of  individuals  in  military  array, 
without  political  organization  or  territorial  limit ;  or  armed  bands 
may  make  hostile  incursions  into  a  loyal  State,  or  hold  divided,  con- 
tested, or  precarious  possession  of  portions  of  it,  as  now  in  Mis- 
souri and  Kentucky.  In  such  cases,  local  residence  may  not  create 
any  presumptioit  of  hostility.     Far  otherwise  is  it  in  Virginia." 

After  reciting  the  action  of  the  State  Convention,  in 
adopting  the  ordinance  of  secession  and  forming  a  con- 
federacy with  other  Southern  States,  Judge  Sprague  said 
further,  — 

''  All  this  was,  indeed,  subject  to  be  disaffirmed  by  a  vote  of  the 
whole  people  of  the  State,  to  be  taken  on  the  twenty-third  day  of 
May :  but  no  part  of  it  has  been  disaffirmed ;  oil  the  contrary,  the 
popular  vote  on  that  day,  apparently  by  a  large  majority,  ratified 

State  like  Kentucky  or  Missouri,  where  armed  bands  may  make  hostile  in- 
cursions and  hold  divided,  contested,  or  precarious  possession  of  portions  of 
it,  in  which  case  local  residence  may  not  create  any  presumption  of  hostility, 
and  such  a  State  as  Virginia,  which,  by  the  act  of  the  established  govern- 
ment, approved  by  a  majority  of  its  citizens,  has  placed  itself  in  war  with 
the  Federal  government.  The  State  sovereignty  was  our  enemy,  and  every 
thing  that  could  afford  aid  and  comfort  to  the  enemy  was  contraband  of  war, 
whatever  the  private  opinions  of  its  owner.  Tiie  claimant  was  identified 
with  the  State  of  Virginia  as  a  subject  of  that  State,  living  in  its  jurisdic- 
tion, and  for  various  reasons  his  claim  to  the  property  in  question  was  inad- 
missible and  the  said  property  must  therefore  be  condemned." 

In  Mr.  Dana's  Wheaton's  Int.  Law,  p.  375,  note  153,  Belligerent  Powers 
exercised  in  Civil  War,  in  an  analysis  of  this  "  elaborate  and  thoroughly 
reasoned  opinion  "  a  different  view,  as  I  understand  his  words,  is  given  by 
the  editor  of  the  bearing  of  the  decision  on  this  point :  as,  in  stating  the 
points  decided,  he  says :  "  (3)  That  in  case  of  civil  war,  among  the  belliger- 
ent powers  to  be  exercised,  may  be  that  of  condemnation  as  'enemy's 
property,'  in  the  technical  sense  of  the  prize  law.  (4)  That  one  of  the 
proofs  of  '  enemy's  property  '  is,  that  it  belongs  to  persons  who  are  at  the 
time  permanent  residents  in  a  place  or  region  which  is  under  the  actual  con- 
trol of  the  enemy,  and  of  which  he  has  firm  possession.  (5)  In  the  present 
case,  Richmond,  Va.,  was  unquestionably  within  the  lines  of  the  enemy  and 
under  his  actual  control  and  de  facto  jurisdiction,  civil  and  military." 


168  THE   DISTINCTION   IN   BELLIGERENCY. 

The  State  of  Virginia  recognized  as  Belligerent. 

the  proceedings  of  the  convention,  the  alliance,  and  the  war.  The 
western  counties  of  the  State  nobly  vindicated  their  honor  and  their 
fidelity  by  refusing  submission  to  rebel  mandates,  and  adhering  to 
the  Union.  They  did  not,  indeed,  change  their  domicile,  but  they 
removed  the  power  of  rebel  Virginia  from  the  place  of  their  domi- 
cile. The  Virginia  rebellion  was  not  the  act  of  individuals  asserting 
that  moral  right  of  revolution  which  belongs  to  all  subjects,  but  it 
was  the  assertion  of  a  pretended  State  right.  It  was  founded  sole- 
ly on  the  deadly  doctrine  of  secession,  which  claims  t^jat  the  State, 
as  an  organized  political  body,  may  sever  itself  from  the  Union. 
In  attempting  this,  and  carrying  on  the  war,  it  acted  by  majorities 
claiming  implicit  obedience  from  the  minority.  The  exterior 
boundaries  of  the  State  and  its  internal  division  by  counties  have 
been  clearly  defined ;  and  the  city  of  Richmond,  where  these  claim- 
ants reside,  is  within  the  territory  over  which,  by  known  limits, 
this  political  body  has,  for  nine  months  past,  held  absolute  domin- 
ion." 1 

On  the  argument  in  the  Supreme  Court  in  the  case  of 
the  Amy  Warwick,  it  was  said  by  Mr.  Dana  for  the  libel- 
lants  :  This  case  "  presents  a  single  question  which  may  be 
stated  thus ;  at  the  time  of  the  capture,  was  it  competent 
for  the  President  to  treat  as  prize  of  war  property  found 
on  the  high  seas,  for  the  sole  reason  that  it  belonged  to 
persons  residing  and  doing  business  in  Richmond,  Vir- 
ginia?"    2  Black,  650. 

In  the  opinion  of  the  Supreme  Court,  delivered  by  Mr. 
Justice  Grier,  it  is  briefly  said  with  reference  to  the  Amy 
Warwick:  "  All  the  claimants,  at  the  time  of  the  capture 
and  before,  were  residents  of  Richmond,  Va.,  and  were 
engaged  in  business  there.  Consequentl}',  their  property 
was  justly  condemned  as  'enemies'  property.'"  And 
thro.ughout  this  opinion  the  judgments  of  the  court  sustain- 
ing all  these  several  captures  are  placed  on  the  ground 

1  The  cases  cited  by  Judge  Sprague,  2  Sprague's  Dec.  137,  —  The  Gerasi- 
mo,  11  Moore,  P.  C.  101,  and  ib.  140,  tiie  Venus,  8  Crancli,  253, —  are  in  point 
for  his  argument,  only  on  the  assumption  that  tlie  belligerent  recognized  is 
a  political  person ;  known  by  its  precedent  capacity  to  engage  in  war. 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  169 

Bearing  of  the  Case  of  the  Amy  Warwick. 

that  the  belligerency  known  to  the  court  was  the  same  as 
in  the  case  of  war  between  two  distinct  nations.^ 

The  dissenting  opinion  by  Mr.  Justice  Nelson,  in  which 
Taney,  Cli.  J.,  and  Catron  and  Clifford,  J  J.,  concurred, 
relates  mainly  to  the  case  of  the  Hiawatha,  as  of  a  neutral 
under  the  law  of  blockade.  But  the  argument  is  supposed 
to  be  equally  applicable  to  all  these  captures.  In  the  con- 
clusion of  this  opinion,  it  is  said :  "  All  the  cases  before  us 
in  which  the  capture  occurred  before  the  13th  of  July, 
1861,  for  breach  of  blockade  or  as  enemies'  property,  are 
illegal  and  void." 

The  case  of  the  Amy  Warwick  and  that  of  the  Crenshaw 
differed  essentially  from  the  cases  arising  on  the  question 
of  the  blockade.  The  question  involved  in  the  former  cases 
was  not  of  the  rights  of  neutrals,  but  of  the  rights  of  citizens 
of  a  State  of  the  United  States,  as  against  the  powers  of  the 
general  government.  And  when,  in  these  cases,  the  courts 
of  the  United  States  took  the  position  of  Prize  courts  in  ref- 
erence to  ships  and  cargoes  belonging  to  such  citizens,  with- 
out waiting  for  any  legislation  by  Congress,  which  must  be 
supposed  to  have  had  power  fully  adequate  to  place  the 
rights  and  obligations  of  such  citizens  within  the  reach  of 
municipal  law,^  and  applied  the  international  law  of  mari- 

1  See  ante,  p.  17,  note,  as  to  Judge  Grier's  view  of  the  relation  of  the 
States. 

2  This  had  in  fact  been  done,  before  this  case  arose,  by  the  Act  of  Con- 
gress of  July  13,  1861,  12  U.  S.  Stat.  255  {ante,  p.  58),  sec.  6  of  wliich  "for- 
feits any  ship  or  vessel,  belonging  in  whole  or  in  part  to  a  citizen  or 
inhabitant  of  the  interdicted  State  or  district,  found  at  sea  or  in  any  port  of 
the  United  States.  The  forfeiture  applies  to  the  loyal  as  well  as  the  dis- 
loyal citizens  in  the  disaffected  district."  Judge  Nelson,  in  the  charge  to  the 
Grand  Jury,  Nov.  4,  1861,  5  Blatchford's  Circuit  Court,  551.  Congress 
might  have  enacted  a  municipal  law  of  prize  as  to  property  of  residents  of  the 
eleven  States  at  sea.  As  also  showing  that,  at  the  time,  no  notice  was  taken 
in  the  discussion  of  any  distinction  in  the  law  applicable  to  these  several  cases, 
it  may  be  proper  to  point  out  that  the  only  arguments  ti  counsel  given  by 
the  reporter  are  those  of  Mr.  Carlisle  for  the  claimants  in  the  case  of  the 
Brillante,  a  neutral  trader,  for  breaking  blockade,  the  »«ssel  and  cargo  be- 


170  THE   DISTINCTION   IN   BELLIGERENCY. 

Coufiscation  under  the  Power  of  a  Belligerent. 

time  capture  as  of  enemies'  property,^  on  the  ground  of  an 
existing  helUgerency,  those  courts  recognized  the  eleyen 
States  of  the  Confederacy  as  a  nation  at  war,  more  fully 
and  precisely  than  was  done  by  any  foreign  proclamation 
of  neutralit3^ 

But  the  same  confusion  of  thought  and  failure  to  ob- 
serve the  political  distinction  in  the  recognition  of  bellige- 
rency, which  are  so  noticeable  in  the  Prize  Cases,  prevailed 
through  the  war.  This  is  to  be  traced  in  the  history  of 
the  so-called  Confiscation  Acts  of  Congress,  and  in  the 
decision  of  cases  founded  on  them,  and  in  the  claim  made 
by  the  President  for  legislative  power  by  Emancipation 
Proclamations. 

The  property  intended  to  be  affected  b}^  the  various 
statutes,  commonly  called  Confiscation  Acts,''^  was  property 
belonging  to  private  citizens,  being  residents  of  certain 
States  or  districts.  These  statutes  were  not,  apparently, 
framed  to  reach  property  to  be  taken  as  belonging  to  a 
political  personality  to  whom  the  law  of  conquest  in  rela- 
tion to  public  property  might  be  applicable.  There  is  no 
reference  in  these  statutes  to  either  any  States,  or  any  con- 
federacy of  States,  as  liable  to  the  loss  of  public  property 
by  conquest. 

There  are,  however,  some  cases  in  the  reports  which. 


ing  Mexican,  and  that  of  Mr.  Dana  for  the  libellants  in  the  case  of  tlie  Amy 
Warwick,  property  of  an  American  citizen  seized  on  the  high  seas  as 
enemy's  i)roperty.  These  four  cases  were  argued,  botli  for  the  lihellants 
and  the  claimants,  by  different  counsel.  As  all  the  arguments  could  not  be 
given,  the  reporter  stated  only  those  which  "came  to  his  hands  in  a  form 
which  relieved  him  of  the  labor  which  the  others  would  have  cost  to  re- 
write and  condense  them."  2  Black,  639.  The  arguments,  so  selected  as 
representing  opposite  sides,  respectively  related  to  two  distinct  questions. 

1  Mr.  Dana,  in  his  edition  of  Wheaton,  p.  375,  in  note  153,  already  cited, 
says,  in  reference  to  all  these  maritime  captures  :  "  Congress  passed  no  laws 
establishing  any  new  principles  or  rules  respecting  condemnation  ;  and  the 
prize  courts  proceeded  entirely  upon  the  rules  of  international  law." 

2  See  references  to  these  statutes,  ante,  pp.  59,  02. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  171 

Seizure  or  Acquisition  by  Conquest  of  the  Confederacy. 

though  they  relate  to  seizures  or  confiscations  by  the  gov- 
ernment of  the  United  States  following  upon  the  rebellion, 
must  yet  be  distinguished  from  the  cases  depending  en- 
tirely on  these  Acts  of  Congress. 

In  United  States,  Lyon,  et  al.  v.  Huckabee,  16  Wall. 
414,  certain  real  estate  situated  in  Alabama,  known  as 
the  Bibb  County  Iron  Works,  had  passed  from  the  pos- 
session of  private  owners  to  that  of  the  Confederate  gov- 
ernment and  been  used,  during  the  war,  as  a  foundry  for 
cannon,  &c.  This  property  had  been  occupied  by  the 
military  forces  of  the  United  States,  and,  after  having  been 
taken  possession  of  by  the  Treasury  department,  as  cap- 
tured and  abandoned  property,  had  been  sold  at  public 
auction.  Afterwards,  a  release '  of  any  interest  of  the 
United  States  in  the  property,  was  given  to  the  pur- 
chasers, Lyon  et  al.,  by  an  Act  of  Congress,  Dec.  15, 
1866,  Laws  of  39th  Congress.  15  U.  S.  Stat.  Private 
Acts,  p.  40. 

In  the  opinion  of  the  court,  delivered  by  Mr.  Justice 
Clifford,  without  dissent,  it  is  said,  16  Wall.  434  :  — 

"  They  claimed  title  under  the  United  States,  and  the  record 
shows  that  the  title  of  the  United  States  was  derived  by  conquest 
from  the  government  of  the  late  Confederate  States.  Our  military 
forces  captured  the  property  while  it  was  in  the  possession  of  the 
Confederate  States  as  a  means  for  prosecuting  the  war  of  the  rebel- 
lion, and  it  appears  that  the  captors  took  immediate  possession  of 
the  property  and  continued  to  occupy  it  under  the  directions  of 
the  executive  authority  until  the  government  of  the  Confederate 
States  ceased  to  exist  and  the  unlawful  confederation  became  ex- 
tinct, when  it  was  sold  by  the  orders  of  the  executive,  and  con- 
veyed to  the  plaintiff  claimants. 

"  All  captures  in  war  vest  primarily  in  the  sovereign ;  but  in 
respect  to  real  property,  Chancellor  Kent  says,  the  acquisition  by 
the  conqueror  is  not  fully  consummated  until  confirmed  by  a  treaty 
of  peace,  or  by  the  entire  submission  or  destruction  of  the  state  to 
which  it  belonged,  which  latter  rule  controls  the  question  in  the 


172  THE  DISTINCTION  IN  BELLIGERENCY. 

Seizure  or  Acquisition  by  Conquest  of  the  Confederacy. 

case  before  the  court,  as  the  confederation  having  been  utterly 
destroyed  no  treaty  of  peace  was  or  could  be  made,  as  a  treaty 
requires  at  least  two  contracting  parties.  Power  to  acquire  terri- 
tory, either  by  conquest  or  treaty,  is  vested  by  the  Constitution  in 
the  United  States.  Conquered  territory,  however,  is  usually  held 
as  a  mere  military  occupation  until  the  fate  of  the  nation  from 
which  it  is  conquered  is  determined,  but  if  the  nation  is  entirely 
subdued,  or  in  case  it  be  destroyed  and  ceases  to  exist,  the  right  of 
occupation  becomes  permanent,  and  the  title  vests  absolutely  in 
the  conqueror.  Complete  conquest,  by  whatever  mode  it  may  be 
perfected,  carries  with  it  all  the  rights  of  the  former  government, 
or,  in  other  words,  the  conqueror,  by  the  completion  of  his  con- 
quest, becomes  the  absolute  owner  of  the  property  conquered  from 
the  enemy,  nation,  or  state.  His  rights  are  no  longer  limited  to 
mere  occupation  of  what  he  has  taken  into  his  actual  possession, 
but  they  extend  to  all  the  property  and  rights  of  the  conquered 
state,  including  even  debts  as  well  as  personal  and  real  property. 

"  Tested  by  these  considerations,  it  must  be  assumed  for  the 
further  purposes  of  this  investigation  that  the  title  acquired  by  the 
jjlaiutiff  claimants  from  the  United  States  was  a  valid  title."  ^ 

The  same  doctrine  was  pointedly  stated  by  Judge  Brad- 
ley in  the  Fifth  Circuit,  in  The  United  States  v.  A  Tract 
of  Land,  1  Wood,  475,  in  which  instance  the  question  was 
as  to  the  claim  to  one  half  the  proceeds,  by  the  informer. 

"  Bradley,  Circuit  Justice.  The  land  in  question  in  the  case 
was  seized  for  confiscation  under  the  acts  of  Aug.  6,  1861,  and 
of  July  17,  1862.  The  information  alleges  that  it  had  been  con- 
veyed to  the  Confederate  States  government  for  the  purpose  of 
aiding  the  insurrection.  If  this  were  the  case,  it  became  the  prop- 
erty of  the  United  States  government  by  right  of  conquest,  ipso 
facto  ;  that  government  succeeding  to  all  the  property  held  by  the 
Confederate  States  government.  The  United  States  needed  no 
proceedings  for  confiscation  or  forfeiture.  They  had  plenary  title 
and  right  of  possession,  if  not  actual  possession,  without  any  such 

1  In  this  case,  anomah)us  in  tlie  matter  of  practice  at  least,  if  not  in  mat- 
ter of  principle  as  well,  the  defendant  Huckabee,  as  the  owner  in  fee  before 
the  property  had  passed  to  the  Confederate  government,  was  tlie  claimant, 
and  the  court  below  had  given  a  decree  in  his  favor. 


THEORY   OF   OUR    NATIONAL   EXISTENCE.  173 

Seizure  or  Acquisition  by  Conquest  of  Virginia. 

proceedings.  It  cannot  be  presumed  that  Congress  intended  to 
authorize  a  proceeding  to  forfeit  or  confiscate  the  government's 
owu  property,  and  divide  the  proceeds  with  the  informer.  Such  a 
proceeding  must  be  regarded  as  supererogatory  and  void." 

The  seizure  or  acquisition  judicially  sanctioned  in  these 
cases  is  to  be  distinguished  from  any  confiscation  of  the 
property  of  private  persons,  not  only  by  its  appearing  to 
involve  the  assertion  of  a  conquest  in  the  technical  sense, 
but  also  by  the  recognition  of  the  Confederate  government 
as  a  political  personality  in  international  relations,  that  is, 
a  political  personality  capable  as  such  of  holding  property 
by  a  right  which  could  pass  over  to  the  conqueror  by  in- 
ternational law.i 

The  cases  in  the  United  States  Circuit  Court,  Eastern 
District  of  Virginia,  Aug.  2,  1877,  known  as  the  Virginia 
Gold  Cases,  United  States  v.  Smith,  and  ten  other  similar 
cases,  1  Hughes,  347,  involve  the  question  of  conquest  of 
the  State.  These  were  for  money  distributed  among  the 
defendants  by  themselves,  being  officers  of  "  the  govern- 
ment of  Virginia  under  the  Confederacy  "  "  on  or  about 
the  2d  day  of  April,  1865,  which  was  the  day  preceding 
the  occupation  of  Richmond  by  the  Union  army,"  The 
facts  were  undisputed,  and  the  question  was  on  demurrer 
to  the  declaration.     The  Reporter  states,  ib.  p.  349,  — 

"  As  the  suit  against  William  Smith,  the  then  governor,  involved 
a  sum  large  enough  to  authorize  it  to  be  carried  to  the  Supreme 
Court,  that  has  been  heard  first,  and  the  others  will  be  stayed  to 

^  Tlie  claim  of  the  government  of  the  United  States  to  property,  which 
had  been  held  in  England  as  property  of  the  Confederate  government, 
rested  upon  a  right  essentially  the  same  as  that  which  was  asserted  in  these 
cases.  But  as,  in  that  instance,  it  was  necessary  to  support  the  claim 
against  persons  who  were  not  subject  to  its  own  legislative  power,  the  cases 
in  which  it  was  made  presented  a  somewhat  different  question  for  judicial 
decision.  These  cases,  The  United  States  v.  Prioleau,  2  Hemming  &  Miller, 
559,  and  The  United  States  v.  McRae,  8  Law  Eep.  Equity  Cases,  69,  cannot 
be  called  cases  oi  confiscation,  and  will  be  noticed  hereafter  in  a  different  con- 
nection with  the  question  of  a  conquest. 


174  THE   DISTINCTION  IN  BELLIGERENCY. 

Basis  of  the  Confiscation  Legislation. 

await  the  result,  in  order  that  the  principle  which  may  be  settled  in 
it  may  govern  the  other  cases." 

In  the  close  of  the  opinion  delivered  by  Judge  Hughes 
overruling  the  demurrer  and  sustaining  the  right  of  the 
United  States  to  appear  as  plaintiff,  it  is  said,  ib.  p.  355, — 

"As  to  the  proposition  of  defendant's  counsel,  that  the  war  of 
the  United  States  was  not  against  the  insurgent  government  of 
Virginia,  and  that  the  overthrow  of  that  government  was  not  a  con- 
quest, but  only  the  setting  aside  of  one  government,  and  the  as- 
sumption of  its  functions  by  another,  it  can  hardly  find  acceptance 
in  view  of  the  facts  of  history.  The  event  happened  at  the  close 
of  a  frightful  war,  and  was  directly  produced  by  arms,  and  by  armies 
in  the  field.  The  power  of  the  United  States  was  directed  against 
the  insurgent  State  governments,  even  more  than  against  their  con- 
federated authorities.  The  war  was  conducted  for  the  overthrow 
of  those  governments.  When  they  were  crushed,  the  war  ceased, 
and  tlie  historical  fact  of  conquest  cannot  be  changed  or  obliterated 
by  the  employment  of  theoretic  paraphrases  in  speaking  of  it.  As 
to  the  insurgent  State  governments,  it  was  a  conquest,  and  was  fol- 
lowed by  the  legal  results  of  conquest.  This  debt  is  due.  It  is 
due  to  some  rightful  claimant,  and  I  think  the  law  makes  it  suffi- 
ciently apparent  who  that  claimant  is.  The  demurrer  must  be 
overruled." 

The  so-called  Confiscation  Acts  were  proposed  and  ac- 
cepted in  Congress,  and  defended  before  the  courts,^  as 
legitimate  applications  of  the  law  of  international  war- 
fare ;  novel  applications,  perhaps,  of  its  principles ;  but 
still,  actual  discoveries  like  patentable  utilizations  of  vir- 
tues long  latent  in  well-known  acids  and  alkalies,  which, 
as  such,  would  stand  on  record  in  international  jurispru- 
dence as  precedents  for  the  customary  law  of  nations 
applied  in  war  between  independent  states,  the  jus  belli  as 
recognized  by  the  rest  of  the  world. 

But  this  pretension  was  based  on  the  discrimination  of 

1  See  the  cases,  ante,  pp.  62-79.  A  still  more  recent  exposition  of  the 
rnti'mnla  of  the  two  Acts  of  Congress  may  be  found  in  the  United  States  v. 
Winchester,  9  Otto,  375,  opinion  by  Waite,  Ch.  J. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  175 

Basis  of  the  Confiscation  Legislation. 

something  more  than  a  de  facto,  or  temporarily  insurrec- 
tionary, power.  These  measures  presupposed  a  belhgerent 
antagonist  exercising  sovereignty,  as  internationally  recog- 
nized, and  determining  rights  of  persons  and  property  by 
its  own  municipal  law.  The  individual  private  persons 
whose  property  was  to  be  affected  by  these  statutes  were 
to  be  discriminated,  not  hj  their  personal  acts  or  senti- 
ments, but  by  the  fact  of  their  being  subjects  or  citizens 
of  enemies'  country.^ 

In  this  pretension,  therefore,  was  involved  the  recog- 
nition of  the  eleven  States  as  belligerent  de  jure;  a 
recognition,  of  itself,  contradictory  of  all  right  in  the  gov- 
ernment to  treat  the  war  as  one  instituted  to  suppress  the 
rebellion  of  private  individuals. 

If,  however,  it  be  thought  necessary  to  form  a  judgment 
of  the  actual  value  of  this  claim  of  discovery  of  a  "  war 
power  "  capable  of  general  application  as  between  nation 
and  nation,  when  belligerent,  it  will  be  fair  reasoning  to 
test  it  by  its  possible  application  in  the  supposed  instance 
of  wars  between  two  nations  whose  absolutely  distinct 
independence  has  never  been  controverted. 

In  the  instance  of  war  between  two  of  the  great  Powers 
of  Europe,  is  the  case  legitimately  supposable  that  the  leg- 
islatures of  the  two  countries  should  pass  laws  ^  authorizing 

^  Compare  the  reasoning  in  the  extracts  from  the  opinions  of  the  court, 
ante,  pp.  65,  70,  71,  72. 

2  The  question  is  of  le/jis!atu'e  confiscation  as  something  quite  distinct 
from  seizure  by  a  purely  military  usage;  as  was  shown  in  Planter's  Bank  v. 
Union  Bank,  16  AVall.  483.  In  reference  to  an  order  by  the  general  in 
command  at  New  Orleans,  it  was  said,  in  the  opinion  of  the  court,  by  Mr. 
Justice  Strong,  ib.  495.  "  It  was  simply  an  attempt  to  confiscate  private 
property  which,  though  it  may  be  subjected  to  confiscation  by  legislative 
authority,  is,  according  to  the  modern  law  of  nations,  exempt  from  capture 
as  booty  of  war.  Still,  as  the  war  had  not  ceased,  though  it  was  not  fla- 
grant in  the  district,  and  as  General  Banks  was  in  command  of  the  district,  it 
must  be  conceded  that  he  had  the  power  to  do  all  that  the  laws  of  war  per- 
mitted, except  so  far  as  he  was  restrained  by  the  pledged  faith  of  the  gov- 
ernment, or  by  the  effect  of  Congressional  legislation.  .  .  .  But  admitting, 


176  THE   DISTINCTION   IN   BELLIGERENCY. 

Basis  of  the  Confiscation  Legislation. 

their  respective  armies  to  seize  the  property  of  subjects 
of  the  other  which,  as  simple  property,  could  coutribute 
to  the  couutry's  resources,  whether  real  prbperty  or  per- 
sonal, and  sell  the  same,  privately  or  at  public  auction, 
divesting,  in  the  case  of  real  property,  the  former  title, 
under  the  local  municipal  law,  and  creating  a  new  title  to 
be  valid,  as  if  under  tlie  same  municipal  law,  when  the 
hostile  force  acting  under  this  extraordinary,  extra-muni- 
cipal legislation  should  have  retired  from  the  country  ? 

May  it  be  supposed  that,  under  the  legislative  power  of 
the  public  enemy,  the  property  of  any  or  all  who  may 
have  engaged  in  the  defence  of  their  country  in  war 
against  him,  in  either  civil  or  militarj'  functions,  will  be 
liable  to  confiscation  and  sale  ;  immovable  property  as 
well  as  movable  ?  Will  the  palaces,  mansions,  farms, 
houses,  hovels,  of  all  connected  with  the  government,  from 
the  sovereign  down  to  the  lowest  official,  be  liable  to  be 
permanently  divested  by  such  legislation  ?     If  this  "  war 

as  we  do,  that  private  property  remained  subject  to  confiscation,  and  also 
that  the  proclamation  applied  exclusively  to  inhabitants  of  the  district,  it  is 
imdeniable  that  confiscation  was  possible  only  to  the  extent  and  manner 
provided  by  the  Acts  of  Congress.  .  .  .  They  designated  government  agents 
for  seizing  enemies'  property.  .  .  .  The  system  devised  was  necessarily  ex- 
clusive. No  authority  was  given  to  a  military  commandant,  as  such,  to 
effect  any  confiscation.  .  .  .  Those  enactments  declaring  that  private  prop- 
erty belonging  to  certain  classes  of  persons  might  be  confiscated,  in  the 
manner  particularly  described,  are  themselves  expressive  of  an  intent  that 
the  rights  of  conquest  should  not  be  exercised  against  private  property  ex- 
cept in  the  cases  mentioned,  and  in  the  manner  pointed  out." 

Mr.  Justice  Bradley  dissented  from  the  judgment,  arguing  ib.  504:  "The 
officer  in  connnand  of  the  armies  of  the  United  States,  after  the  possession 
of  New  Orleans  had  been  secured,  required  debtors  in  New  Orleans  of  credit- 
ors in  the  eneniy's  lines  to  pay  such  debts  to  the  proper  receiving  officer  of 
the  army.  That  the  debts  due  from  the  citizens  of  a  belligerent  State  to 
the  citizens  of  the  State  with  whom  the  former  is  at  war  may  be  confiscated 
is  undoubted  international  law.  If  such  confiscation  is,  in  fact,  made  by 
the  military  authorities,  and  if  the  action  of  tliose  authorities  is  assumed  or 
confirmed  l)y  the  sovereign  authority,  the  confiscation  is  perfect  ...  In 
my  judgment,  such  a  disposition  of  tlie  case  would  better  accord  with  the 
principles  of  international  law,  and  tlie  mutual  rights  and  relations  of  all 
the  parties  concerned." 


THEORY   OP   OUR   NATIONAL   EXISTENCE.  177 

Limit  to  Confiscation  of  Real  Estate. 

power "  exists  in  respect  to  immovable  property,  it  is 
important  for  conveyancers  to  know  whether  its  effects 
continue  beyond  the  duration  of  the  hostile  occupa- 
tion.^ 

The  joint  resolution  which  was  adopted  by  Congress  at 
the  date  of  the  passage  of  the  Act  of  July  17,  1862  (^ante, 
p.  64,  note),  and  was  accepted  by  Mr.  Lincoln,  as  "sub- 
stantially one  "  with  the  statute,  when  he  approved  and 
signed  both  (see  Message  of  same  date),  was  understood 
to  have  been  passed  in  view  of  objections  which  he  had 
prepared  to  state  on  returning  the  bill,  without  signature, 
and  which  were  founded  on  art.  iii.,  §  3,  el.  2,  of  the 
Constitution,^ 

1  Dana's  Wheaton's  Int.  Law,  8th  ed.  pp.  432-444,  editor's  note,  169, 
Conquest  and  Belligerent  Occupation,  wliich  bears  on  many  of  the  points  noticed 
in  this  chapter;  p.  437,  under  Belligerent  Occupation,  (4)  Immovable  Property. 
In  reference  to  public  lands  appropriated  by  the  conqueror:  "As  his  occupa- 
tion is  subject  to  the  chances  of  war,  so  is  his  title  to  what  he  cannot  re- 
move and  corporeally  make  his  own.^  He  cannot,  therefore,  give  to  another 
a  permanent  title  to  public  lands.  ...  As  to  private  property  in  immova- 
bles, the  occupying  power  is  not  considered,  in  the  modern  practice  of 
nations,  as  authorized  to  confiscate  their  use  and  income.  He  may  make 
such  use  of  them  as  the  necessities  of  war  require,  and  subject  tliem  to 
taxes  and  contributions  ;  but  the  mere  fact  of  military  occupation  does  not 
work  a  transfer  of  the  uses  or  income  of  private  lands,  or  authorize  such  a 
transfer  to  be,  in  fact,  made." 

2  "No  attainder  of  treason  shall  work  corruption  of  blood  or  forfeiture, 
except  during  the  life  of  the  person  attaintable."  See  Macpherson's  Hist. 
Rebellion,  197  ;  Bigelow  v.  Forest,  9  Wall.  341 ;  Day  v.  Micou,  18  Wall. 
160;  Confiscation  Cases  (Slidell's  land),  20  Wall.  92,  a  case  from  the  Fifth 
Circuit,  1  Woods,  221. 

In  the  opinion  of  the  court  in  Wallach  v.  Van  Riswick,  2  Otto,  208,  it  is 
said  by  Field,  J.,  "  It  was  not  doubted  that  Congress  might  provide  for  for- 
feitures effective  during  the  life  of  the  offender.  The  doubt  related  to  the 
possible  duration  of  the  forfeiture,  not  to  the  thing  forfeited  or  to  the  ex- 
tent and  efficacy  of  the  forfeiture  while  it  continued."  Under  a  municipal 
law,  the  children,  if  also  guilty  of  treason,  would  always  be  equally  punish- 
able, by  loss  of  estate,  with  their  ancestor.  But  under  this  ingenious  blend- 
ing of  a  proceeding  in  rem,  jure  belli,  with  municipal  law,  the  children,  who 
may  have  been  the  more  active  in  treason,  would  have  their  inheritance 
secured  to  them  by  the  confiscation  of  his  estate,  flagrante  bello,  for  the  life- 
time of  their  parent. 


178  THE  DISTINCTION  IN  BELLTGEEENCY. 

Commercial  Staples  as  Contraband. 

But  all  belligerent  nations  cannot  be  expected  to  limit 
themselves  b}-  the  Constitution  of  the  United  States.  It 
is  easy  to  understand  that  while  a  region  is  occupied  by  a 
victorious  enemy  he  may  j^rotect  Avliom  he  will  in  tlie  pos- 
session of  any  real  property,  and  that,  on  his  withdrawal, 
the  holder  under  him  should  not  be  liable,  in  the  courts  of 
the  country,  as  trespasser,  or  for  use  during  the  hostile  oc- 
cupation. But  it  can  hardly  be  supposed  thatau}^  absolute 
title  in  fee,  or  for  a  life,  or  for  years,  could  be  recognized 
under  the  local  municipal  law ;  at  least,  in  the  absence  of 
some  treaty  stipulation.^ 

Is  it  to  be  supposed  that  hereafter,  in  the  case  of  wars 
carried  on  with  a  nation  possessing  districts  rich  in  cotton, 
or  other  commercial  staple,  such  as  tobacco,  rice,  sugar, 
or  coffee,  the  judicial  officers  ^  of  the  other   belligerent 

1  Dana's  Wheaton's  Int.  Law,  editor's  note,  169  (p.  442) :  "  Postliminy  is 
applied  to  all  lands ;  for  the  belligerent  occupant  does  not  acquire  absolute 
title  to  tliem,  but  only  the  usufruct."  I  have  not  found  any  allusion  to  the 
operation  of  this  principle  in  any  of  the  cases  relating  to  confiscation  under 
these  Acts. 

^  In  section  6  of  the  Act  of  March  12,  1863,  it  is  made  the  duty  of  any 
soldier  or  sailor  in  the  service,  "  who  may  take  or  receive  any  such  aban- 
doned property,  or  cotton,  sugar,  rice,  or  tobacco,  from  persons  in  such 
insurrectionary  districts,"  to  turn  it  over  to  the  agents,  &c.  Under  section 
8  of  the  Act  of  July  2,  1864,  the  government  agents  were  authorized  to  use 
the  proceeds  of  property  seized,  in  purchasing  other  "  products  of  the  States 
declared  in  insurrection"  for  subsequent  sale,  —  at  a  profit  to  the  govern- 
ment, —  as  may  be  assumed.  But,  otherwise,  the  acts  of  Congress  did  not 
discriminate  any  particular  kind  of  property.  In  Young  v.  United  States, 
7  Otto,  58,  Waite,  Ch.  J.,  said  :  "  The  avithority  for  the  capture  of  the  cotton 
was  not  derived  from  the  law  of  Congress,  but  from  the  character  of  the 
property,  it  being  '  potentially  an  au.xiliary  '  of  the  enemy,  and  constituting 
a  means  by  which  they  hoped  and  e.xpected  to  perpetuate  their  power." 
lieferring  to  Chase's  opinion  in  Mrs.  Alexander's  cotton,  ante.,  p.  66.  This 
"  peculiar  character  "  of  cotton  is  a  judicial  discovery.  In  the  opinion  of 
tlie  court  by  Miller,  J.,  in  Sprott  v.  United  States,  20  Wall.  468,  it  is  said, 
"  It  is  a  fact  so  well  known  as  to  need  no  finding  of  the  court  to  establish  it, 
a  fact  which,  like  many  other  historical  events,  all  courts  take  notice  of,  that 
cotton  was  the  principal  support  of  the  rebellion,  so  far  as  pecuniary  aid 
was  necessary  for  its  support." 

In  Rothschilds  v.  United  States,  6  Ct.  CI.  204,  the  property  seized  was 
tobacco. 


THEORY   OF  OUR   KATIONAL   EXISTENCE.  179 

Two  Questions  of  International  Importance. 

must  regard  such  staple  product  as  property  of  a  "  pecu- 
liar character,"  or  as  "  hostile  property,"  or  as  property 
which  is  "  potentially  an  auxiliary  of  the  enemy  ;  "  so  that, 
within  the  reach  of  such  military  forces,  all  purchase  and 
trade  in  such  property,  even  by  subjects  of  neutral  nations, 
shall  be  void,  and  all  such  property  shall  be  liable  to  seiz- 
ure for  the  general  purpose  of  disabling  the  enemy,  and  to 
sale  for  sustaining  the  general  military  treasury  of  the 
captor  ? 

Or  is  the  law  of  civilized  warfare,  as  expounded  by  the 
United  States,  to  be  hereafter  that  all  movable  property 
on  enemies'  territory,  of  any  kind,  shall  be  liable  to  seizure 
by  the  hostile  forces,  —  whether  owned  by  public  official, 
or  private  citizen  ;  by  man,  woman,  or  child  ;  native  citi- 
zen, or  subject  of  some  neutral  nation,  who  may  be  found 
dealing  or  trading  in  such  enemies'  jurisdiction.^ 

In  the  application  of  the  so-called  Confiscation  Acts, 
two  questions  have  arisen  involving  the  recognition  of 
principles  of  international  jurisprudence. 

1.  How  far  such  legislation  could  affect  the  rights  and 
obligations  of  non-resident  aliens  ;  that  is,  of  aliens  resid- 
ing in  foreign  neutral  countries. 

1  In  a  dissenting  opinion  by  Mr.  Justice  Field  in  Sprott  v.  United  States, 
20  Wall.  468,  it  is  said  :  "  They  [the  United  States]  have  never  asserted  [?] 
any  greater  rights  arising  from  capture  of  property  on  land  in  the  hands  of 
citizens  engaged  in  the  rebellifni  than  those  which  one  belligerent  nation 
asserts  with  reference  to  such  property  captured  by  it  belonging  to  the  citi- 
zens or  subjects  of  the  other  belligerent.  All  public  property  which  is 
movable  in  its  nature,  possessed  by  one  belligerent,  and  employed  on  land 
in  actual  hostilities,  passes  by  capture.  But  private  property  on  land, 
except  such  as  becomes  booty  when  taken  from  enemies  in  the  field  or 
besieged  towns,  or  is  levied  as  a  military  contribution  upon  the  inhabitants 
of  the  hostile  territory,  is  exempt  from  confiscation  by  the  general  law  of 
nations."  See  Wheaton,  Int.  Law,  §  346,  and  Mr.  Dana's  edition,  note  169, 
Bellifiererit  Occupation  (6)  ;  Halleck's  Int.  Law  (edition,  1861),  p.  456.  The 
opinion  delivered  for  the  court  by  Mr.  Justice  Field  in  Dow  v.  Johnson,  10 
Otto  (100  U.  S.),  158,  and  the  dissenting  opinion  of  Clifl^ord  and  Miller,  J.J., 
may  be  of  interest  in  this  connection. 


180  THE   DISTINCTION  IN  BELLIGERENCY. 

Confiscation  affecting  Non-Resident  Aliens. 

2.  How  far  such  legislation  could  affect  the  rights  and 
obligations  of  resident  aliens,  that  is,  aliens  residing  with- 
in the  limits  of  the  United  States  ;  meaning  the  eleven 
States  of  the  so-called  Confederacy,  as  well  as  any  other 
part  of  the  United  States. 

In  the  cases  of  La  Plante,  6  Ct.  CI.  319  ;  of  Harrison, 
ib.  323  ;  and  of  Hill,  8  Ct.  CI.  470,  the  claimants  were 
French  and  English  subjects  residing,  during  the  war,  in 
their  respective  countries,  who  sued  for  the  proceeds  of 
cotton  seized  or  captured  under  the  so-called  Qonfiscation 
Acts,  which  had  been  previously  purchased,  on  their 
account,  through  agents  within  the  limits  held  at  the  time 
by  the  Confederate  force.  These  claims  were  contested 
on  the  part  of  the  government,  on  the  ground  that,  under 
the  circumstances,  such  aliens  could  not  acquire  a  valid 
title  to  the  cotton  ;  at  least,  not  as  against  the  United 
States.  The  court,  however,  recognized  the  validity  of 
the  purchase,  and  sustained  the  claims  under  the  statutes.^ 

In  two  of  these  cases,  that  is  in  Harrison's  case  and 
HilFs  case,  one  of  the  members  of  the  court.  Judge  Nott, 
dissented,  on  the  ground  that  the  claimants'  purchase  of 
cotton  was,  if  not  criminal,  at  least  illegal,  as  "  a  traffic 
carried  on  in  defiance  of  the  municipal  law  and  public 
policy  of  the  United  States,"  which,  for  that  reason,  should 
not  be  recognized  in  any  court  of  the  United  States,  and 
especially  not  in  the  Court  of  Claims,  under  the  condition 
stated  in  the  third  section  of  the  Act  of  March  12,  1863, 
the  "  Captured  and  abandoned  property  "  Act  (^ante,  p.  67, 
note)  because  the  act  of  purchase  gave  "  aid  and  comfort  " 
to  the  rebellion,  whether  the  non-resident  alien  purchaser 
could  be  criminal  in  such  purchase  or  not.     G  Ct.  CI.  327. 

•  In  the  Ouachita  Cotton  cases,  0  Wail.  529,  the  claim  of  an  alien  resi- 
dent in  France  was  disallowed  because  of  want  of  title  in  the  party  of  whom 
he  had  purchased  the  cotton  in  New  Orleans  while  occupied  by  the  govern- 
ment forces.  It  was  not  denied  that  such  neutral  might  have  purchased 
cotton  from  any  one  in  the  districts  held  by  the  Confederate  force. 


THEORY  OF   OUR   NATIONAL   EXISTENCE.  181 

Confiscation  affecting  Non-Resident  Aliens. 

Ill  the  case  of  Collie  v.  The  United  States,  9  Ct.  CI. 
431,  the  claim  was  by  a  British  subject  residing  in  Eng- 
land during  the  war,  for  cotton  purchased  in  the  Southern 
States,  and  with  proceeds  of  blockade-running  vo3'ages. 
In  the  opinion  of  the  court,  delivered  by  Judge  Loring 
and  sustaining  the  claim,  it  is  argued  that  the  words  "  aid 
and  comfort  to  the  rebellion,"  as  used  in  the  statute,  must 
be  supposed  to  relate  to  a  crime,  and  not  to  an  act,  and 
that,  as  the  non-resident  alien  could  not  be  chargeable 
criminally,  the  clause  could  be  no  bar ;  and  that,  if  the 
statute  imputed  a  crime  in  such  case,  the  claimant  must, 
by  consequence,  be  entitled  to  the  benefits  of  amnesty 
which  should  remove  his  disability ;  on  the  authority  of 
Carlisle  v.  United  States,  16  Wall.  147,  post,  p.  189. 

Judge  Nott  dissented  in  this  case,  not  only  on  the 
ground  previously  taken  by  him  as  to  all  purchases  within 
the  districts  held  by  the  rebel  forces,  but  also  because,  in 
this  instance,  the  claimant  had  been  engaged  in  running 
in  goods  through  the  blockade.^  He  also  held  that  the 
statute  must  be  taken  to  refer  to  an  act,  independently  of 
any  criminality  of  the  actor,  and  that,  because  not  punish- 
able for  the  act  as  a  crime,  a  non-resident  alien  could  not 
have  the  benefit  of  the  amnesty.^ 

The  case  of  Young,  assignee  of  Collie,  97  U.  S.,  7  Otto, 
39,  appears  to  have  been  the  same  case  on  appeal  from 
the  Court  of  Claims.^  But  the  decision  of  the  Supreme 
Court,  Field,  J.,  dissenting,  was  against  allowing  the 
claim  under  the  Acts  of  Congress. 

In  each  of  the  two  courts,  the  case  was  taken  to  depend 
on  the   question  whether  Collie  should  be  held  to   have 

1  In  Bates's  Case,  4  Ct.  CI.  569,  the  claimant,  who  was  held  to  have  given 
aid  and  comfort  by  running  the  blockade,  was  a  citizen  of  South  Carolina. 

2  See  also  the  opinion  of  the  court  delivered  by  Judge  Nott,  in  Green's 
Case,  6  Ct.  CI.  420. 

3  Though  the  findings  of  facts,  in  regard  to  the  importation  of  contra- 
band of  war,  difier. 


182  THE  DISTINCTION"  IN   BELLIGERENCY. 

Confiscation  affecting  Non-Resident  Aliens. 

given  aid  and  comfort  to  the  rebellion,  according  to  the 
intent  of  the  words  used  in  the  statute. 

In  the  opinions  delivered  for  the  Court  of  Claims,  by 
Judge  Loring,  and  for  the  Supreme  Court  by  Chief  Jus- 
tice AVaite  the  charge  of  giving  aid  and  comfort  is  pre- 
sented as  depending  on  the  position  of  non-resident  aliens 
in  furnishing  munitions  of  war  to  the  Confederacy.  The 
decision  in  the  claimant's  favor,  by  the  Court  of  Claims,  as 
turning  on  the  finding  that  the  claimant  had  "  imported 
goods,  not  munitions  of  war,"  9  Ct.  CI.  447,  449,  and  the 
decision  against  him  by  the  Supreme  Court,  on  the  finding 
that  he  had  imported  cannon,  &c.,  7  Otto,  43-46.  The 
two  courts  may  therefore  be  taken  to  have  agreed  in  hold- 
ing that  dealing  in  contraband  of  war,  under  the  circum- 
stances, should  exclude  the  claimant. 

In  these  opinions,  it  is  intimated,  by  the  argument, 
rather  than  squarely  asserted,  that  this  case,  or  this  ques- 
tion of  giving  aid  and  comfort  to  the  rebellion  by  a  non- 
resident alien,  was  to  be  determined  on  principles  equally 
applicable  to  the  position  of  neutrals  in  any  war  between 
two  independent  nations.^ 

It  is  said  by  Chief  Justice  Waite,  7  Otto,  63,  — 

"  A  non-resident  alien  need  not  expose  himself,  or  his  property, 
to  the  dangers  of  a  foreign  war.  He  may  trade  with  both  bellig- 
erents, or  with  either.  By  so  doing,  he  commits  no  crime.  His 
acts  are  lawful  in  the  sense  that  they  are  not  prohibited.  So  long 
as  he  confines  his  trade  to  property  not  hostile  oi'  contraband,  and 
violates  no  blockade,  he  is  secure  both  in  his  person  and  his  prop- 
erty. If  he  is  neutral  in  fact  as  well  as  in  name,  he  runs  no  risk. 
But  as  soon  as  he  steps  outside  of  actual  neutrality,  and  adds  ma- 
terially to  the  warlike  strength  of  one  belligerent,  he  makes  him- 
self correspondingly  the  enemy  of  the  other.  To  the  extent  of  his 
acts  of  hostility,  and  their  legitimate  consequences,  he  submits  him- 
self to  the  risk  of  the  war  into  whose  presence  he  voluntarily 

1  Compare  9  Ct.  CI.  447-449  ;  7  Otto,  GO,  63. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  183 

Confiscation  affecting  Non-Resident  Aliens. 

comes.  If  he  breaks  a  blockade,  or  engages  in  contraband  trade, 
he  subjects  himself  to  the  chances  of  capture  and  confiscation  of  his 
offending  property.  If  he  thrusts  himself  inside  the  enemies'  lines, 
and  for  the  sake  of  gain  acquires  title  to  hostile  property,  he  must 
take  care  that  it  is  not  lost  to  him  by  the  fortune  of  war.  While 
he  may  not  have  committed  a  crime  for  which  he  can  be  person- 
ally punished,  his  offending  property  may  be  treated  by  the  adverse 
belligerent  as  enemy  property.  He  has  the  legal  right  to  carry,  to 
sell,  and  to  buy ;  but  the  conquering  belligerent  has  a  correspond- 
ing right  to  capture  and  condemn.  He  enters  into  a  race  of  dili- 
gence with  his  adversary,  and  takes  the  chances  of  success.  The 
rights  of  the  two  in  law  are  equal.  The  one  may  hold  if  he  can, 
and  the  other  seize. 

"  Collie,  having  been  a  non-resident  alien,  was  not  a  traitor ;  but 
in  his  foreign  home  he  seems  to  have  done  as  much  as  any  one  per- 
son could  do  to  aid  and  assist  the  insurgents  in  their  struggle  for 
supremacy." 

It  is  not  clear  whether  the  Chief  Justice  intended  to 
hold  neutral  carriers  of  contraband  to  a  different  moral 
standard,  in  case  of  civil  wars,  from  that  applicable  in  or- 
dinary war ;  nor  yet  whether  he  even  accepted  the  doc- 
trines usually  received,  as  to  trading  in  contraband,  in 
case  of  war  between  two  belligerent  nations.^ 

In  caption  5  of  the  report  of  the  case  of  the  Peterhoff, 
5  Wall.  28,  this  proposition,  "  the  conveyance  by  neutrals 
to  belligerents  of  contraband  articles  is  always  unlawful," 
is  given  as  the  doctrine  of  the  case.  But  the  language  of 
Chief  Justice  Chase  delivering  the  opinion,  ib.  56,  does 
not  justify  this,  —  "We  know  of  but  two  exceptions  to 

1  Although  the  claimant,  Collie,  had  sent  out  cannon,  &c.,  as  a  gift  to  the 
Confederate  government,  it  is  doubtful  whether  this  action  should  have 
been  discriminated  in  the  American  courts  from  trade,  in  contraband.  Such 
a  distinction  is  not  made  in  the  above  opinion ;  and  it  seems  doubtful 
whether  any  service  rendered  in  his  own  country,  by  the  subject  of  a  neutral 
nation,  to  one  belhgerent,  can  be  held  a  hostile  act  in  the  law  courts  of  the 
other.  The  only  redress  in  such  case  would  be  by  application  to  the  gov- 
ernment of  such  neutral. 


184  THE   DISTINCTION   IN   BELLIGERENCY. 

Rights  and  Obligations  of  Non-Resident  Aliens. 

the  rule  of  free  trade  by  neutrals  with  belligerents ;  the 
first  is  that  there  must  be  no  violation  of  blockade  or 
siege  ;  and,  second,  that  there  must  be  no  conveyance  of 
contraband  to  either  belligerent." 

The  same  judge,  in  The  Bermuda,  3  Wall.  551,  said  : 
"  So  too,  except  goods  contraband  of  war,  or  conveyed 
with  intent  to  violate  a  blockade,  neutrals  may  transport 
to  belligerents  whatever  belligerents  may  agree  to  take." 

But  these  citations  are  only  loose  and  misleading  ex- 
pressions of  the  doctrine  that  a  belligerent  has  the  right  to 
seize  vessels  and  cargoes  attempting  to  run  his  blockade, 
or  found  on  the  high  seas  carrying  munitions  of  war  to  the 
other  belligerent ;  while,  on  the  other  hand,  neutrals  have 
the  right  to  do  either  ;  subject  to  the  risk  of  capture  under 
his  right.  There  is  no  unlawfulness  in  the  act,  on  their 
part.i 

It  must  be  clear  that,  in  the  case  of  war  between  two 
distinct  nations,  the  legislative  authority  of  neither  bellig- 
erent could  affect  the  rights  and  obligations  of  the  subjects 

1  "  There  is  nothing  in  our  laws,  or  in  the  law  of  nations,  that  prohibits 
our  citizens  from  sending  armed  vessels,  as  well  as  munitions  of  war,  to  for- 
eign ports  for  sale.  It  is  a  commercial  adventure,  which  no  nation  is  bound 
to  prohibit,  and  which  onlj"  exposes  tiie  persons  engaged  in  it  to  the  penalty 
of  confiscation,"  Story,  J.,  in  The  Santissima  Trinidad,  7  Wheat.  340,  —  the 
"  confiscation,"  that  is  to  say,  of  the  particular  vessels  and  cargoes  seized  in 
such  commercial  adventure;  that  is,  in  the  act,  or  in  delicto,  as  the  phrase  is, 
Wheaton's  Int.  Law,  §  500,  though  there  is  no  criminality,  or  delictum,  in  the 
act.  This  is  eminently  American  doctrine.  "  The  right  of  the  neutral  to 
transport,  and  of  the  hostile  power  to  seize,  are  conflicting  rights,  and 
neither  party  can  charge  the  other  with  a  criminal  act."  1  Kent's  Com. 
145.  The  application  of  this  in  the  instance  of  civil  wars  has  always  been 
asserted  diplomatically  by  the  United  States.  See  the  correspondence  cited 
by  counsel  for  Collie,  the  claimant,  in  8  Ct.  CI.  434 ;  Lawrence's  Wheat. 
Int.  Law,  p.  846,  note  241  by  tiie  editor. 

The  same  doctrine  was  very  fully  stated,  with  special  reliance  on  Ameri- 
can authorities,  by  Lord  Chancellor  Westbury  in  l'2x  parte  Chavasse,  re 
Grazebrook  ;  a  case  arising  from  the  civil  war  in  America.  See  The  Jurist, 
vol.  xi.  pt.  i.  1865,  p.  400  ;  and  by  Dr.  Lushington,  ib.  p.  1025 ;  and  the 
citations  in  the  argument  for  Collie,  9  Ct.  CI.  432-445. 


THEORY   OF  OUR   NATIONAL   EXISTENCE.  185 

Operation  of  the  Statute  as  to  Non-Resident  Aliens. 

of  neutral  nations,  residing  in  their  own  country,  to  deal 
with  the  other  belligerent  nation  ;  or  could  do  so  only  as 
far  as  might  be  done  in  the  application  of  the  powers  inci- 
dental to  belligerency,  in  respect  to  blockade,  search  for, 
and  seizure  of  contraband  of  war,  &c.,  on  the  high  seas.^ 
In  such  case  neutrals,  residing  in  their  own  country,  who 
voluntarily  abet  or  give  encouragement  to  one  of  two  such 
belligerents  cannot  be  regarded  as  public  enemies  by  the 
other  belligerent. 

In  the  opinion  of  the  court  delivered  by  Chief  Justice 
Waite,  in  Young,  Assignee  of  Collie,  v.  United  States,  7 
Otto,  62,  it  is  said,  — 

"  There  can  be  no  doubt  that  the  words  '  aid  or  comfort,'  are 
used  in  this  statute  in  the  same  sense  they  are  in  the  clause  in  the 
Constitution  defining  treason  (art.  3,  sec.  3),  that  is  to  say  in  their 
hostile  sense.  The  acts  of  aid  and  comfort  which  will  defeat  a  suit 
must  be  of  the  same  general  character  with  those  necessary  to  con- 
vict of  treason,  where  the  offence  consists  in  giving  aid  and  comfort 
to  the  enemies  of  the  United  States.  But  there  may  be  aid  and 
comfort  without  treason  ;  for  '  treason  is  a  breach  of  allegiance,  and 
can  be  committed  by  him  only  who  owes  allegiance,  either  per- 
petual or  temporary.'  United  States  v.  Wiltberger,  5  Wheat.  96. 
The  benefits  of  the  statute  are  withheld  not  for  treason  only,  but 
for  giving  aid  and  comfort  as  well.  A  claimant  to  be  excluded 
need  not  have  been  a  traitor,  it  is  sufficient  if  he  has  done  that 
which  would  have  made  him  a  traitor  if  he  had  owed  allegiance  to 
the  United  States.^ 

1  See  the  doctrine  fully  set  forth  in  the  opinion  of  the  court  by  Chase, 
Ch.  J.,  in  The  Bermuda,  3  Wall.  514,  in  which  case  the  argument  and  de- 
cision condemning  the  vessel  was  entirely  based  on  grounds  applicable  to 
neutrals  in  the  case  of  war  between  independent  nations.  See  also  Judge 
Loring,  opinion  in  Collie  v.  United  States,  9  Ct.  CI.  447,  and  Field,  J.,  opin- 
ion in  Carlisle  v.  United  States,  1(3  Wall.  154. 

2  The  reference  is  to  the  Act  of  March  1863,  sec.  3, 12  U.  S.  St.  820,  in  which 
the  words  "aid  and  comfort"  are  employed.  These  are  technical  terms,  long 
used  to  describe  a  certain  crime  in  subjects  as  against  their  sovereign.  It  might 
be  urged  that,  as  a  nonresident  alien  cannot  commit  treason,  he  cannot  give 
that  "  aid  and  comfort "  which  defines  treason.  Allegiance  is  essential  to 
such  "  aid  and  comfort."    But  in  sec.  12  of  the  Act  of  March  3, 1863, 12  U.  S. 


186  THE   DISTINCTION   IN   BELLIGERENCY. 

The  Position  of  Non-Resident  Aliens. 

It  would  ajipear  therefore  that  the  decision  of  the  Su- 
preme Court  sustained  the  view  taken  by  Judge  Nott  in 
the  Court  of  Claims  ;  that  is,  that  non-resident  aliens  may 
be  judicially  known  as  having  given  aid  and  comfort  to 
the  rebellion. 

In  the  case  of  any  supposable  rebellion,  the  sovereign 
whose  authority  is  resisted  may  prefer  to  rely  upon  the 
ordinary  methods  of  municipal  jurisdiction,  civil  and  crim- 
inal, as  the  means  of  sustaining  such  authority.  In  such 
case,  aliens,  though  residing  in  foreign  and  neutral  coun- 
tries, cannot  do,  by  their  agents  residing  within  the  juris- 
diction of  that  sovereign,  what  those  agents  could  not  do 
for  themselves ;  and,  in  so  far  as  they  should,  by  those 
agents,  engage  in  enterprises  forbidden  by  the  municipal 
law  of  that  sovereign,  their  rights  of  property  cannot  re- 
ceive the  protection  of  that  law. 

But  the  obligation  of  such  aliens  to  conform  themselves 
to  this  is  not  founded  on  any  allegiance  on  their  part, 
but  solely  on  the  presumption  that  the  authority  of  that 
sovereign  is  adequate  to  protect  all  rights  of  person  and 
property  within  a  particular  territory,  and  if  the  legiti- 
mate sovereign  should  be  unable  to  give  them,  as  such 

St.  767,  amending  the  Act  establisliing  the  Court  of  Claims,  it  is  pro- 
vided that  "  in  order  to  authorize  the  said  court  to  render  a  judgment  in 
favor  of  any  claimant,  whether  a  citizen  or  not,"  it  must  be  set  forth  in  the 
petition  that  such  claimant  has  not  in  any  way  voluntarily  abetted  or  given 
encouragement  to  rebellion  against  the  said  government  of  the  United 
States;  which  allegation  maybe  traversed  by  the  government,  and  if,  on 
trial,  such  issue  shall  be  decided  against  the  claimant,  his  petition  shall  be 
dismissed."  The  words  "  voluntarily  abetted  or  given  encouragement  to 
rebellion  "  are  less  technical  and  of  broader  signification,  and  such  as  might 
be  more  effective  to  sustain  the  argument  in  tliis  ojjinion,  and  in  those  of 
Judge  Nott  in  the  Court  of  Claims,  that  the  intention  of  Congress  was  not 
to  exclude  only  such  persons  as  could  be  chargeable  for  an  illegal  act,  but 
also  any  who,  in  any  part  of  the  world,  had  abetted  or  encouraged  that 
which  the  government  here  regarded  as  rebellion.  May  it  be  supposed  that, 
in  the  case  of  claimants  being  foreigners  who  had,  at  home,  written  or 
spoken  on  this  subject,  tlie  court  would  take  testimony  as  to  the  effect  of 
their  opinions  ? 


THEORY   OF   OUR    NATIONAL   EXISTENCE.  187 

Tlie  Position  of  Non-Resident  Aliens. 

aliens  on  whose  allegiance  he  has  no  claim,  that  protec- 
tion, by  reason  of  the  adverse  insurgent  force,  he  cannot 
hold  such  aliens  responsible  in  violating  any  legislation 
intended  to  suppress  such  rebellion  by  restricting  such 
commercial  intercourse. ^  And,  even  if  this  were  doubtful, 
if  he  assumes  the  position  of  a  belligerent  power,  in  rela- 
tion to  the  rel)el  antagonist,  in  order  to  exercise  the  rights 
of  blockade,  search,  and  seizure  of  contraband  of  war,  on 
the  high  seas,  as  against  subjects  of  other  nations  who,  in 
the  pursuit  of  their  own  interests,  may  assist  the  insur- 
gents by  trading  with  them,  such  sovereign  can  have,  as 
against  such  aliens,  only  the  same  rights  which  he  would, 
as  a  belligerent  power,  have  in  case  of  war  with  an  inde- 
pendent nation.  In  imposing  upon  such  aliens  the  liabili- 
ties of  neutrals  in  an  international  war,  such  a  sovereign 
accords  also  to  them  the  rights  of  neutrals  in  such  a  war.^ 

1  Tlie  American  government  never  imdertook  to  enforce  section  4  of  the 
Act  of  July  13,  1861,  which  contemplated  the  closing  of  ports,  not  in  its 
possession,  against  any  ship  or  vessel  from  beyond  the  United  States. 
England  and  France  informed  the  Secretary  of  State  that  they  would  con- 
sider such  a  decree  null  and  void,  and  that  they  would  not  submit  to  meas- 
ures taken  on  the  high  seas  in  pursuance  of  such  decree.  Lawrence's 
Wheat.  Int.  Law,  p.  555 ;  editor's  note  175,  referring  to  Parliamentary 
Papers,  18(52,  North  America,  No.  172,  Lord  Lyons  to  Lord  John  Russell, 
Aug.  12,  18G1 ;  Dana's  Wheat.  Int.  Law,  p.  687,  editor's  note,  239,  Municipal 
SurveilUnirc 

■^  In  La  Plante's  case,  6  Ct.  CI.  321,  the  cotton  claimed  had  been  pur- 
chased by  an  agent  residing  in  Carolina  for  the  claimant,  a  French  sub- 
ject residing  in  France.  It  was  said  for  the  court,  by  Judge  Milligan  :  "  At 
the  time  of  the  appointment  of  Henderson,  as  the  agent  of  the  claimant, 
there  was  no  law  in  force  in  the  United  States  that  interdicted  trade  between 
a  neutral  and  resident  citizen  of  tlie  national  or  insurrectionary  States  ;  and 
none  could  have  been  enacted  without  at  least  great  injury  to  the  nation, 
and  perhaps  giving  just  ground  of  offence  to  neutral  powers.  But,  however 
this  may  be,  and  we  do  not  undertake  to  decide  it  now,  the  blockade  was  set 
on  foot  to  meet  this  very  difficulty,  by  cutting  off  free  intercourse  between 
neutral  powers  and  the  insurgent  States.  What  was  its  eflPect  ?  "  &c.  See 
also  argument  for  the  counsel  for  the  claimant,  ib.  312.  "  In  general,  a 
neutral  merchant  trading  in  the  ordinary  manner  with  a  belligerent  coun- 
try, does  not,  by  the  mere  accident  of  his  having  a  stationed  agent  there, 
contract  the  character  of  the  enemy."    Phillimore,  Int.  Law,  pt.  ix.  c.  vi. 


188  THE   DISTINCTION   IN   BELLIGERENCY. 

Tlie  Position  of  Non-Resident  Aliens  in  a  Civil  War. 

Xeither,  therefore,  in  case  of  belligerency  being  recog- 
nized in  civil  war,  can  aliens  residing  in  other  countries 
be  held  responsible  by  either  belligerent  party,  for  any 
thing. they  may  do  for  the  interest  of  the  other;  except  as 
they  might  eqnally  be  responsible  as  between  two  belli- 
gerent nations,  under  the  laws  of  international  warfare. 
They  take  only  the  risks  which  exist  in  that  case,  and,  as 
far  as  they  are  concerned,  neither  party  is  more  rebel  or 
more  sovereign  than  the  other ;  and,  as  to  them,  neither 
party  more  than  the  other  can  be  both  belligerent  and 
sovereign.! 

sec.  85.  Judge Nott's  argument  in  his  dissenting  opinions,  6  Ct.  CI.  327,  8  ib. 
472,  appears  to  be  that,  the  agent  being  a  citizen  of  tlie  United  States,  the 
neutral  could  not  do  by  him  what  the  agent  could  not  do  for  himself.  But, 
if  this  were  correct,  there  must  be  a  difference  as  to  the  position  of  neutrals, 
in  the  case  of  an  ordinary  war  and  of  a  civil  war.  To  deny  neutrals  in  an 
ordinary  war  the  right  to  employ  agents  in  the  territory  of  either  belligerent 
would  be  denial  of  all  neutral  trade. 

■1  In  Green's  case,  8  Ct.  CI.  420  (Dec.  1872),  post,  190,  Judge  Nott  said 
of  this  class  of  cases,  affecting  non-resident  aliens,  —  "  It  remains  to  be  de- 
termined whether  a  personal  disability  to  maintain  an  action  exists  in  the 
absence  of  crime,  or  whether  the  statute  intended  to  create  a  trust  for  the 
benefit  of  non-resident  aliens  who  violated  their  obligations  of  neutrality  by 
giving  aid  and  comfort  to  the  rebellion."  But,  if  there  was  any  neutrality 
in  the  case,  it  was  that  neutral  nations  did  not  undertake  to  discriminate  the 
belligerent  parties  as  being,  the  one  —  the  sovereign,  and  the  other  —  the 
rebel.  The  decision  in  the  case  of  The  Georgia,  1  Lowell,  96 ;  '7  Wall.  32, 
in  which  the  vessel,  which  had  been  an  armed  cruiser  under  a  commission 
from  the  Confederates,  had  been  seized  on  the  high  seas,  after  having  been 
sold  to  a  British  subject  in  the  port  of  Liverpool,  rested  on  the  proposition 
that  a  neutral  purchaser  must  bo  held  to  have  known  that  the  Confederate 
flag  was  as  good  a  flag  to  fight  under  as  was  that  of  the  United  States.  If 
the  vessel  had  been  a  pirate,  with  no  claim  to  a  nati(mal  flag,  it  could  not 
have  been  seized  after  such  a  sale.  If  the  American  government  had  not 
accepted  this  position,  the  sale  of  the  vessel,  in  a  foreign  port,  could  have 
been  rendered  illegal  only  by  some  previous  legislation  as  to  sales  of  Ameri- 
can ships  abroad,  or  some  notice  given  to  foreign  nations,  and  it  is  doubtful 
whether  such  legislation  or  notice  would  have  bpen  recognized  by  any  for- 
eign country  which  had  asserted  a  position  of  neutrality,  as  if  between  two 
nations  at  war.  By  this  seizure,  the  American  government  defined  the 
position  of  neutral  nations  as  much  as  it  had  been  by  the  British  Procla- 
mation of  May  13,  1861,  ante,  p.  56. 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  189 

Position  of  Aliens  in  reference  to  Civil  War. 

The  clause  in  the  Act  of  Congress  under  which  this 
claim  was  presented  makes  no  distinction,  in  respect  to 
their  residence,  among  claimants  who  are  riot  citizens.  By 
the  decision  rendered  in  this  case,  the  Supreme  Court 
takes  the  position  that  in  case  of  civil  wars  the  sul)jects  of 
neutral  nations,  residing  in  their  respective  countries,  may- 
be judicially  distinguished  in  the  courts  of  one  of  the 
belligerent  parties  as  having  given  aid  and  comfort  to 
rebellion  against  such  belligerent.^ 

There  may  be  some  doubt  whether  the  court  has  pro- 
fessed to  base  this  decision  on  a  doctrine  as  to  the 
obligations  of  subjects  of  neutral  nations  in  case  of  any 
international  war,  or  on  a  doctrine  applicable  exclusively 
in  civil  wars. 

But  if  the  actions  judicially  distinguished  as  giving 
aid  and  comfort  to  a  rebellion  are  such  as  neutrals  are 
competent  to  perform  in  the  case  of  war  between  two 
independent  nations,  it  may  be  essential  that  foreign  gov- 
ernments should  determine  for  themselves,  whether  the 
antagonist  recognized  as  belligerent  was  a  confederacy  of 
States  having  de  jure  the  political  capacity  to  wage  war, 
or  was  an  insurrectionary  de  facto  belligerent. 

In  the  cases  of  Carlisle  and  Henderson,  6  Ct.  CI.  398, 
8  id.  153,  and  Carlisle  v.  United  States,  16  Wall.  147,  the 
claim  was  for  the  proceeds  of  cotton  taken,  as  belonging 
to  the  parties  being  "  subjects  of  the  Queen  of  Great 
Britain  "  residing  in  Georgia  before  and  during  the  war, 
and  proved  to  have  engaged  in  the  manufacture  of  salt- 

1  If  this  is  the  true  doctrine  of  modern  international  jurisprudence,  it  may 
be  important  that  it  should  be  more  generally  known  in  those  places  where 
a  very  large  proportion  of  the  people  make  it  a  matter  of  pride  and  princi- 
ple to  exhibit  a  chronic  sympathy  with  every  revolt  against  established 
government  in  other  countries.  Judge  Sprague  in  the  Amy  Warwick,  2 
Sprague's  Decisions,  136,  was  careful  to  recognize  "  that  moral  right  of 
revolution  which  belongs  to  all  subjects,"  and  the  same  solicitude  may 
be  found  in  many  other  judicial  opinions  upholding  the  action  of  the  gov- 
ernment against  the  rebellion. 


190  THE   DISTINCTION   IN   BELLIGERENCY. 

Liabilities  of  Resident  Aliens  in  Civil  War. 

petre,  purchased  of  them  by  the  Confederate  government 
for  the  manufacture  of  gunpowder.  It  was  decided  in 
the  court  below  and  in  the  Supreme  Court,  on  appeal, 
that  these  resident  aliens  could  sustain  their  claim  under 
the  statutes  by  receiving,  as  citizens  in  the  rebellion  re- 
ceived, the  benefit  of  amnesty  under  the  proclamations, 
for  having  given  "aid  and  comfort"  to  the  rebellion; 
that  is,  in  each  court  it  was  held  that  aliens  resident  in 
the  southern  States  could  be  chargeable,  for  such  action, 
with  the  crime  of  treason  against  the  United  States.^ 

This  view  was  reaffirmed  in  the  Court  of  Claims  by  the 
decision  of  Green's  case,  8  Ct.  CI.  482,  in  which  the  claim- 
ant was  a  British  subject  domiciled  in  Savannah  during 
the  war,  and  who,  in  the  report,  is  not  stated  to  have 
participated  in  the  rebellion  or  given  it  aid  or  assistance 
otherwise  than  by  continuing  his  residence  there  during 
the  war.2 

1  In  Collie  v.  United  States,  9  Ct.  CI.  452,  Judge  Loring  remarked,  — 
"  The  application  of  the  argument  of  the  defendants  that  we  are  called 
upon  by  them  to  make  is,  to  refer  the  words  of  the  statute,  as  to  aid  and 
comfort  to  the  rebellion,  in  the  cases  of  our  own  citizens  and  aliens  resident 
here  and  owing  allegiance  here,  exclusively  to  the  crime  and  not  at  all  to 
the  act ;  and  in  the  case  of  aliens,  not  resident  here  and  not  owing  allegiance 
here,  exclusively  to  the  act  and  not  at  all  to  the  crime." 

-  Tiie  opinion  for  the  court  was  delivered  by  Judge  Nott,  who  in  the 
other  cases  had  held  non-resident  aliens  chargeable  for  aid  and  comfort  to 
the  rebellion.  In  this  case.  Judge  Nott  yielded  to  the  authority  of  Carlisle 
V.  Henderson ;  but,  for  himself,  took  the  ground  that  resident  aliens  were  in 
the  same  position  in  these  cases  as  non-resident  aliens  ;  that  is,  were  excluded 
from  the  benefit  of  the  amnesty,  because  never  chargeable  for  crimp,  though 
liable  to  exclusion  of  tlieir  claim  for  giving  aid  and  comfort.  Denying, 
apparently,  "  the  amenability  of  a  resident  alien  to  the  law  of  treason,  as  to 
which  I  supposed  [he  says,  ib.  419]  that  there  was  not  a  lawyer  in  the 
world  who  could  entertain  a  doubt,"  —  on  the  ground  that  the  authorities 
make  "  the  allegiance  reciprocal  to  the  protection,"  and  that  the  rebellion 
made  that  protection  impossible.  But  this  is  no  more  true  of  the  resident 
alien  than  of  the  native  citizen.  The  territorial  jurisdiction  determines  the 
allegiance  in  the  case  of  each.  The  relations  of  persons  who  owe  no  alle- 
giance by  their  residence  are  those  as  to  which  the  question  of  protection  or 
no  protection  is  material.     Ante,  p.  186.     The  doctrine  in  Carlisle  v.  Hen- 


THEORY   OF   OTJR   NATIONAL   EXISTENCE.  191 

Importance  of  the  Distinction  in  case  of  Aliens. 

In  the  case  of  any  supposable  rebellion,  the  subjects  of 
foreign  States  who  may  be  residing  within  districts  occu- 
pied by  insurgent  forces  which,  as  such,  and  only  as  such, 
may  have  received  recognition,  as  a  belligerent  de  faoto^ 
from  the  belligerent  claiming  to  be  the  actual  sovereign, 
will  not  be  protected  by  such  temporary  belligerency  from 
responsibility  to  that  actual  sovereign.  Though  they  owe 
no  natural  allegiance  to  such  sovereign,  as  do  the  native 
or  naturalized  inhabitants,  they  owe  a  temporary  or  quali- 
fied allegiance,  and  for  aid  rendered  to  the  insurgents, 
though  recognized  belligerents,  they  may  be  charged  with 
treason  as  if  native  or  naturalized.^ 

But  the  subjects  of  neutral  nations  who,  during  a  war 
between  two  belligerent  nations^  may  be  within  the  terri- 
torial limits  of  either  of  such  nations  cannot  be  held  indi- 
vidually responsible,  in  their  persons  or  their  property,  to 
the  other  belligerent  for  any  thing  which  they  may  do 
contrary  to  the  policy  or  interest  of  such  belligerent ;  ex- 
cept as  the  native  subjects  of  the  country  in  which  they 
are  living  may  be  equally  responsible  under  the  laws  and 
usages  of  war  ;  even  though  the  persons  and  property  of 
such  aliens,  if  resident  or  domiciled,  are  not  specially  pro- 
tected by  international  law  against  the  legislation  of  such 
belligerent  when  in  hostile  occupation  of  the  country  in 
which  they  may  then  be.^ 

dcrson,  as  to  allegiance  due  from  alien  residents  in  one  of  tlie  Southern 
States,  was  reaffirmed  by  the  Supreme  Court  in  Eadich  v.  Hutchins,  5 
Otto,  210. 

1  In  the  opinion  delivered  by  Mr.  Justice  Field  for  the  court  in  Carlisle 
V.  United  States  this  doctrine  of  allegiance  of  the  alien  resident  in  the 
insurrectionary  districts  is  assumed  rather  than  shown.  It  is  there  taken 
on  the  authority  of  the  opinion  in  Hanauer  v.  Doane,  12  Wall.  347,  —  "That 
he  who,  being  bourul  by  his  allegiance  to  a  government,  sells  goods  to  the 
agent  of  an  armed  combination  to  overthrow,"  &c.  But  in  that  case  the 
party  was  a  citizen  of  one  of  the  Southern  States. 

^  Phillimore  Int.  Law,  p.  ix.  c.  vi.  sec.  85  ;  Wheaton,  Int.  Law,  Dana's  ed. 
sees.  318-335,  Lawrence's  ed.  557-576.  In  United  States  v.  Diekelman,  2 
Otto.  520,  the  defendant  with  his  vessel,  under  the  German  flag,  came 


192  TH^   DISTINCTION   IN   BELLIGERENCY. 

Importance  of  the  Distinction  in  reference  to  Aliens. 

Hence  it  may  appear  that,  in  cases  where  aliens  residing 
within  the  limits  held  by  the  confederacy  were  concerned, 
it  was  material  to  determine  whether  the  belligerent  recog- 
nized as  the  antagonist  to  the  United  States  was  a  con- 
federacy of  States,  each  capable  by  its  political  nature  of 
carrying  on  war,  or  was  an  insurgent  force  having  no  such 
political  character,  and  being  only  belligerent  de  facto. 

For,  though  neutral  nations  can  have  neither  rights  nor 
obligations  in  reference  to  the  view  taken  by  the  govern- 
ment of  the  United  States  of  the  allegiance  of  native  or 
naturalized  citizens  of  the  eleven  States,  the  question 
whether  subjects  of  neutral  nations,  temporarily  resident 
in  those  States,  can  be  chargeable  with  treason  against  the 
United  States  and  suffer  loss  of  property,  under  the  puni- 
tive legislation  of  the  United  States  for  the  supj)ression  of 
a  rebellion,  depends  upon  the  question  whether  such  aliens 
and  the  governments  of  their  respective  countries  had  the 
right  to  consider  those  States  as  the  belligerent  at  war 
with  the  United  States,  or  were  bound  to  know  that  there 
was  no  belligerent,  as  against  the  United  States,  other  than 
a  body  of  insurgents  recognized  only  as  a  temporary  and 
de  facto  power  with  belligerent  rights.^ 

witliin  the  territory  which  neutrals  could  not  regard  as  a  distinct  country 
from  the  United  States  after  its  occupation  by  the  national  military  forces  ; 
even  though  the  civil  authority  had  not  been  there  restored.  Even  while 
under  martial  law,  that  law  was,  as  to  neutral  nations,  part  of  the  municipal 
law  of  the  United  States;  the  recognition  of  the  rebel  belligerency  having 
then  terminated  as  to  the  district  so  occupied ;  and,  therefore,  the  return 
cargo  of  the  Prussian  vessel  was  subject  to  the  port  regulations  instituted 
by  the  military  authority;  irrespectively  of  the  provisions  in  the  treaty 
with  Prussia  protecting  trade  in  contraband  of  war.  See  opinion  of  the 
court  by  Waite,  Ch.  J. 

1  The  application  of  such  maxims  as  e.r  turpi  causa,  ex  dolo  mnio,  non 
oritur  actio,  where  aliens  are  concerned,  will  depend  on  this  matter  of 
political  fact.  Compare,  for  illustration,  the  arguments  and  decisions  in  the 
case  of  CoppcU  v.  Hall,  7  Wall.  542,  in  the  Supreme  Court  on  errtir  from 
the  Circuit  Court  for  the  Eastern  District  of  Louisiana. 

The  distinction  would  also  be  important  in  the  case  of  aliens  who  might 
have   shipped    on   vessels    conmiissioned  as   cruisers   by   the   Confederate 


THEORY  OF  OUE   NATIONAL  EXISTENCE.  193 

Importance  of  the  Distinction  in  reference  to  Aliens. 

It  could  be  urged  with  propriety  that  by  the  Act  of 
Congress  establishing  the  Court  of  Claims,  and  by  the 
various  Acts  amending  that  Act,^  the  court  is  one  of  special 
and  limited  jurisdiction,  which  is  further  restricted  by  the 
terms  of  the  "  Confiscation  Acts,"  in  reference  to  claims 
under  them,  and  that  the  court  is  bound  to  interpret 
strictly  the  words  defining  its  jurisdiction.  Still,  it  may 
be  supposed  that  the  claims  of  non-resident  aliens  against 
the  government  of  the  United  States,  similar  to  those  in 
the  cases  here  cited,  should  be  presented,  diplomatically, 
through  their  own  governments,^  and  in  some  of  these  it 

authority.  Compare  Dana's  Wheaton,  p.  198,  editor's  note  84,  as  to  debate 
in  the  House  of  Lords,  May  16, 1861,  arising  on  the  President's  proclamation 
of  April  19,  1861,  respecting  "  any  person  acting  under  pretended  authority 
of  the  States  in  rebellion  and  molesting  vessels  of  the  United  States  would 
be  held  amenable  to  the  laws  of  the  Union  for  the  prevention  and  punish- 
ment of  piracy."     12  Stat.  U.  S.  p.  1258,  Appendix,  No.  4. 

1  See  the  proviso  in  sec.  12  of  Act  of  March  3, 1863  ;  ante,  p.  185,  n.  2.  The 
Act  of  July  27,  1868,  sec.  2,  15  Stat.  U.  S.  243,  accords  the  right  to  proceed 
against  the  United  States  through  this  court,  to  "  aliens  who  are  citizens  or 
subjects  of  any  government  which  accords  to  citizens  of  the  United  States 
the  right  to  prosecute  claims  against  such  government  in  its  courts." 
There  must  be  some  little  question  of  the  correctness  of  Judge  Nott's 
dictum  in  Harrison's  case,  6  Ct.  CI.  327,  and  8  Ct.  CI.  472,  tliat  "aliens,  non- 
resident, have  no  right  to  resort  to  the  courts  of  a  country,  and  they  come 
in  only  by  treaty  or  through  international  comity,"  unless  it  is  understood 
that  such  international  comity  is  part  of  tlie  common  law.  Comp.  Wheaton, 
Int.  Law,  sees.  140,  141. 

2  In  Hill's  case,  8  Ct.  CI.  473,  Judge  Nott  said,  — "  The  claim  is  not 
within  the  intent  of  the  statute,  and  the  claimant,  if  entitled  to  relief,  should 
have  sought  it  through  his  own  government."  Art.  xii.  of  the  treaty  of 
Washington,  17  U.  S.  Stat.  867,  is  a  limited  provision  for  some  of  such  claims. 
Judge  Nott,  9  Ct.  CI.  454.  In  Young  v.  United  States,  7  Otto,  67,  it  is  said 
by  Chief  Justice  Waite,  repeating  the  doctrine  of  his  opinion  in  United 
States  V.  Diekelman,  —  "If  his  property  was  captured  by  the  United  States, 
under  circumstances  which  entitled  him  to  require  its  restoration,  the  law 
of  nations  gave  him  the  right  to  prosecute  his  claim  through  his  own 
government  for  the  loss  he  sustained.  That  right  was  not  taken  from  him 
by  the  Abandoned  and  Captured  Property  Act.  It  was  open  to  him  from 
the  first  moment  of  the  capture.  All  that  he  had  to  do  was  to  induce  his 
government  to  assume  the  responsibility  of  making  his  claim,  and  then  the 
matter  would  be  '  prosecuted  as  one  nation  proceeds  against  another,  not  by 
suit  in  the  courts,  as  matter  of  right,  but  by  diplomatic  representations,  or, 

13 


194  THE   DISTmCTION   IN  BELLIGERENCY. 

Differences  in  the  Position  of  Aliens. 

may  be  material  to  decide  whether  the  belligerent  antag- 
onist to  the  United  States  during  the  war  was  to  be 
regarded  by  the  neutral  governments  as  States,  belligerent 
by  political  capacity,  or  an  insurrectionary  de  facto  belli- 
gerent. 

The  position  of  any  non-resident  alien  would  be  the 
same  under  either  view ;  that  is,  if,  as  is  here  supposed, 
the  obligations  of  neutrality  are  the  same  in  a  civil  war  as 
in  any  other.  But  the  distinction  would  be  material  in 
the  case  of  aliens  residing  in  the  limits  of  the  eleven 
States. 

In  the  case  of  aliens  resident  in  the  part  of  the  United 
States  not  affected  by  the  rebellion,  it  is  clear  that  they 
stood  in  the  same  position  as  the  native  or  naturalized 
citizens  of  the  United  States  residing  in  the  same  place. 
The  temporary  allegiance  due  from  them,  while  under  the 
territorial  jurisdiction  of  the  United  States,  made  them 
equally  subject  to  the  municipal  law  of  the  place,  and 
equally  liable  to  the  charge  of  treason  for  dealing  with  the 
belligerent  enemy  ;  whether  the  enemy  recognized  was  the 
States  in  their  political  capacity,  or  a  body  of  insurgents 
as  a  temporary  de  facto  belligerent. ^ 

The  doctrines  of  public  law  which  have  here  been  ap- 
plied to  test  the  political  right  of  the  so-called  Confisca- 
tion Acts  may  also  be  appealed  to  in  judging  of  the  actual 

if  need  be,  by  war.'  In  such  case  'it  rests  with  tlie  sovereign  against 
whorii  the  demand  is  made,  to  determine  for  himself  what  he  will  do  with 
it.  He  may  pay  or  reject  it;  he  may  submit  to  arbitration,  open  his  own 
courts  to  suits,  or  consent  to  be  tried  in  the  courts  of  another  nation.  All 
depends  upon  himself.'  United  States  v.  Diekelman,  92  U.  S.  520.  This 
was  the  only  right  Collie  had  when  his  cotton  was  taken,  and  the  United 
States  have  never  consented  to  grant  him  any  other.  While  the  President, 
by  his  pardon,  may  restore  lost  rights,  it  has  never  been  supposed  that  in 
Buch  a  way  he  can  grant  new  ones." 

1  Habicht  v.  Alexander's  Ex'r,  1  "Wood,  412,  decision  by  Judge  Duval, 
6th  Circuit.  The  contract  for  cotton,  in  Texas,  by  the  plaintiff,  being  aa 
alien  resident  in  New  York,  held  void  under  the  non-intercourse  Act. 


THEORY   OF   OUE,   NATIONAL   EXISTENCE.  195 

Emancipation  by  War-Power. 

force  to  be  ascribed  to  the  President's  Emancipation 
proclamations. 

These  have  been  generally  understood  as  resting  on  the 
supposed  existence  of  a  power,  jure  belli,  in  a  military  com- 
mander, when  in  an  enemy's  country,  to  determine  the 
personal  status  of  any  natural  subjects  of  that  enemy  who 
had  been  held  in  any  state  of  involuntary  service  ;  and  to 
determine  it  in  this  sense,  that,  not  only  would  the  doc- 
trine of  postliminy  have  no  effect  to  restore  the  previous 
status  of  servitude  of  those  persons  who  might,  during  the 
war,  be  within  the  actual  control  of  such  military  com- 
mander ;  but  such  military  order  should,  as  municipal  law, 
apply  to  any  persons  in  like  condition  within  the  territo- 
rial limits  of  such  enemy's  country,  without  reference  to 
the  actual  extent  of  military  operations,  and  also  entirely 
aside  from  any  existing  or  prospective  change  of  dominion 
by  conquest. 

This  was  an  assumption,  as  to  the  existence  of  a  doc- 
trine of  international  law,  for  which  no  proof  had  been 
given  at  the  time.^     But,  even  if  the  supposed  doctrine 

^  It  may  be  supposed  that,  if  any  offer  of  such  proof  had  been  known,  it 
would  have  been  noticed  by  Mr.  B.  R.  Curtis,  in  the  pamphlet  entitled  "Ex- 
ecutive Power,"  which  first  appeared  in  October,  1862,  and  which  is  included 
in  the  memoir  of  the  author  by  his  son.  In  this  it  is  said  :  "  The  only  sup- 
posed source  or  measure  of  these  vast  powers  appears  to  have  been  desig- 
nated by  tlie  President,  in  his  reply  to  the  address  of  the  Chicago  clergymen, 
in  the  following  words  :  '  Understand,  I  raise  no  objection  against  it  on  legal  or 
constitutional  grounds  ;  for,  as  commander-in-chief  of  the  army  and  navy,  in 
time  of  war,  I  suppose  I  have  a  right  to  take  any  measure  which  may  best  sub- 
due the  enemy.'  This  is  a  clear  and  frank  declaration  of  the  opinion  of  the 
President  respecting  the  origin  and  extent  of  the  power  he  supposes  himself 
to  possess  ;  and,  so  far  as  I  know,  no  source  of  these  powers,  other  than  the 
autliority  of  commander-in-chief  in  time  of  war,  has  ever  been  suggested." 
Memoir  of  B.  R.  Curtis,  &c.,  vol.  ii.  317.  As  to  any  proof  afterwards  of- 
ered  I  do  not  know  any  more  considerable  than  that  in  "A  Letter  to  Curtis 
in  Review  of  his  Pamphlet  on  the  Emancipation  Proclamation,"  New  York, 
1863,  by  C.  P.  Kirkland,  p.  7.  "  What  then,  if  we  were  at  war  with  a  foreign 
nation  immediately  on  our  borders,  and  that  nation  had  within  its  bosom 
millions  of  slaves  ■?      Can  any  one  versed  in  the  slightest  degree  in  the 


196  THE   DISTINCTION    IN   BELLIGERENCY. 

A  Development  in  International  Law. 

were  recognized,  it  could  be  a])plicable  only  in  the  case  of 
a  war  between  belligerents,  being  such  de  jure^  or  being 
each  at  war  in  virtue  of  independent  political  power,  and 
the  assumption  of  such  a  power  was,  as  has  already  been 
argued  in  connection  with  the  so-called  Confiscation  Acts, 
inconsistent  with  the  action  of  the  government  in  treating 
secession  as  rebellion.-^ 

But  if  international  jurisprudence  is  destined  to  receive 
any  important  accession  from  the  precedents  thus  offered  ^ 
by  the  several  departments  of  our  government,  it  may  be 
anticipated  that  its  delegates  sent  to  conventions  to  be 
held  in  Frankfort,  for  the  exposition  and  humanization  of 

principles  of  the  law  of  nations,  and  the  laws  of  war,  for  a  moment  doubt 
our  right  to  declare  and  proclaim  freedom  to  those  slaves  in  case  that 
nation  did  not  discontinue  that  war  within  a  prescribed  period  ?  "  No- 
body could  dispute  the  right  "  to  declare  and  proclaim "  that,  or  any 
thing  else.  The  question  is  whether  any  effect  follows  under  the  law  of 
international  warfare.  Mr.  James  Reddie,  of  Scotland,  known  as  an  author 
of  several  works  on  public  law,  of  high  repute,  in  an  article  in  the  Anthro- 
pological Review  (Edinburgh,  1864),  vol.  ii.  p.  2U2,  took  the  ground  that 
there  was  no  such  effect. 

1  For  this  reason  there  was  a  contradiction  even  in  Mr.  Lincoln's  procla- 
mation, Jan.  1,  1863.  "  By  virtue  of  the  power  in  me  vested  as  commander- 
in-chief  of  the  army  and  navy  of  the  United  States  in  time  of  actual  rebellion 
against  tlie  authority  and  government  of  the  United  States." 

It  may  be  now  decent  to  assume  that  Mr.  Lincoln  credited  himself  with 
the  possession  of  the  ])ower  claimed  by  these  words,  though  much  of  his 
previous  action  might  show  that  he  could  not  have  had  any  very  strong 
conviction  on  that  point.  See,  especially,  an  article,  "The  Emancii)ation 
Proclamation,"  by  James  C.  Welling,  in  the  North  American  Review,  Feb- 
ruary, 1880. 

If  Mr.  Dana's  remarks  headed  "  Slavery  under  Belligerent  Occupation," 
in  note  160  (8)  to  §  348  of  his  edition  of  Wheaton's  Int.  Law,  are  to  be  under- 
stood as  intended  to  support  that  claim  of  power,  I  do  not  know  of  any 
which  has  been  more  successful.  Mr.  Lawrence,  in  his  edition  of  the  same 
work,  vol.  ii.  pp.  597-617,  has  collected  many  other  opinions  supporting  his 
own  conclusions  against  the  doctrines  asserted  to  maintain  the  Emancipa- 
tion Proclamations  and  tlie  Confiscation  Acts. 

2  "As  the  Act  was  designed  to  introduce  the  principle  of  confiscating 
enemy  property  seized  on  land,  like  that  seized  on  water,"  &c.,  Mr.  Justice 
Miller,  ante,  p.  1?,.  "  There  is,  so  far  as  we  are  aware,  no  similar  legislation 
mentioned  in  history."     Chase,  Ch.  J.,  ante,  p.  75. 


Tg:EORY   OP   OUR   NATIONAL  EXISTENCE.  197 

Relation  of  Belligerency  and  Sovereignty. 

international  law,  will  have  been  fully  instructed  to  pre- 
sent the  doctrine  in  all  its  bearings  for  tlie  enlightenment 
of  their  European  associates,  and  that  in  due  time  it  will 
find  its  way  into  the  ordinary  books  on  the  subject. 

It  is  superfluous  to  discuss  here  such  inquiries,  because, 
as  already  stated,  even  if  the  existence  of  such  powers 
under  the  rules  of  international  warfare  be  admitted,  the 
circumstances  in  which  they  should  be  applied  are  not  to 
be  found  where  the  belligerent  enemy  recognized  is  only 
so  de  facto,  —  an  insurrectionary  force,  beginning  with  and 
ending  with  the  duration  of  military  operations. 

On  the  review  of  cases  in  the  Supreme  Court,  arising 
under  the  so-called  Confiscation  Acts,  in  the  second  chap- 
ter it  was  inferred  that  the  majority  of  the  court  did  not 
consider  their  provisions  as  punitive  municipal  law,  or  as 
derived  from  power  to  punish  treason  and  rebellion  vested 
in  the  legislative  department  by  the  Constitution,  but  ac- 
cepted this  legislation  solely  on  the  doctrine  of  a  war- 
power.^ 

There  may  possibly,  however,  be  some  question  as  to 
this,  and  it  may  perhaps  be  still  argued  that  this  legis- 
lation is  not  to  be  regarded  as  solely  dependent  upon  the 
war  power  as  above  set  forth,  that  is,  as  applicable  in  any 
international  war,  but  rests  upon  a  "  peculiar  position  "  ^ 
occupied  by  the  government  in  this  instance,  as  claimed  by 
Mr.  Chief  Justice  Waite  in  Lamar  v.  Browne,  2  Otto,  ayite., 
p.  78,  so  that  they  "  could  act  both  as  belligerent  and  sov- 
ereign," and  that  it  was  only  when  so  belligerent  and 
sovereign  that  the  claim  would  be  made,  and  therefore  not 
in  the  case  of  war  with  a  foreign  nation. 

In  this  argument,  the  powers  of  a  belligerent  in  inter- 

1  Compare  ante,  pp.  70,  79. 

2  According  to  other  decisions  it  is  the  peculiar  character  of  the  prop- 
erty, or  being  "  hostile  property  "  by  its  nature  which  makes  the  difference. 
See  ante,  p.  66,  77. 


198  THE   DISTINCTION   IN   BELLIGERENCY. 

Limitations  of  Belligerent  and  Sovereign  Rights. 

national  warfare  with  parties  who  are  not  his  subjects  are 
supposed  to  be  superadded  to  the  powers  of  a  sovereign 
over  his  subjects.^  Many  of  the  provisions  in  these  stat- 
utes could  not  be  derived  either  from  the  law  of  war  or 
from  the  powers  granted  to  the  government  under  the 
Constitution.  Provisions  in  the  nature  of  municipal  law 
which  could  not  have  been  framed  under  the  Constitu- 
tion are  incorporated  into  the  law  of  war,  and  then  ap- 
plied as  ordinary  legislation.^ 

But  neither  by  addition  nor  by  multiplication  can  such 
combination  of  powers  exist  where  two  powers  are  an- 
tagonistic ;  so  that  the  occasion  for  one  class  of  powers 
excludes  the  occasion  for  the  other.  To  say  that  the 
inhabitants  of  the  eleven  States  were  alien  enemies  at  the 
very  moment  when  they  were  rebels  is  a  contradiction  in 
terms. 

The  government  of  the  United  States  might  be,  as  was 
claimed,  both  belligerent  and  constitutional  sovereign. 
But  the  only  use  of  belligerent  rights  compatible  with 
sovereignty  over  the  antagonist  was  that  which,  while  suf- 
ficient as  to  neutrals,  was  limited  by  the  disability  to  accord 
a  political  status  to  those  known  only  as  a  de  facto  military 

1  "  For  the  enforcement  of  their  constitutional  rights  against  armed  in- 
surrection they  liad  all  the  powers  of  a  most  favored  helligerent,"  Waite, 
Ch.  J.,  2  Otto,  l'J5,  ante,  p.  78.  Compare  Field,  J.,  in  Tyler  v.  Defrees, 
ante,  p.  73. 

2  "  The  laws  alluded  to  would  seem  to  be  obnoxious  not  only  to  the  viola- 
tion alike  of  the  princi])les  of  international  law  and  of  the  Constitution  of  the 
United  States,  whetiier  we  regard  them  as  intended  to  apply  to  belligerents 
or  to  rebels,  but  they  blend  all  distinctions  between  the  two  systems,  pro- 
posing to  enforce  rights  founded  exclusively,  if  they  exist  at  all,  on  war, 
through  process  applicable  only  to  times  of  peace.  In  otlier  words,  as, 
while  an  adverse  possession  of  the  seceded  States  exists,  all  legislation  there 
would  be  inojjerative,  these  enactments,  based  on  belligerent  claims,  are 
made  to  ai)ply  after  the  war-power  has  ceased,  and  which,  even  on  the  sup- 
position that  the  territory  is  thereafter  to  be  regarded  as  a  conquered  coun- 
try, and  not  to  revert  to  its  former  condition  as  States  of  the  Union,  would 
be  the  exercise  of  a  severity  unknown  to  modern  civilization."  Lawrence's 
"Wheaton's  Int.  Law,  p.  605,  editor's  note. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  199 

Belligerency  in  Civil  War. 

power.^  The  belligerent  right  which  was  alone  adequate 
to  support  any  such  legislative  powers,  as  were  claimed, 
presupposed  the  recognition  of  the  eleven  States  as  the  an- 
tagonist belligerent,  and  of  their  citizens  as  alien  enemies 
to  the  United  States,  capable,  by  their  character  as  such, 
to  wage  war  against  the  United  States,  but  at  the  same 
time  incapable  of  occupying  the  position  of  rebels  as  to 
the  United  States  or  their  government.^ 

In  the  assertion,  so  frequently  made  in  the  cases  arising 
out  of  the  war,  that  the  government  possessed  the  powers 
both  of  a  belligerent  and  a  sovereign,  it  seems  to  have 
been  supposed  that  the  legislative  power  of  any  sovereign 
in  respect  to  any  subjects  in  rebellion  is  augmented,  in 
recognizing  their  belligerent  status,  through  his  own  as- 
sumption of  the  position  of  a  belligerent.-^     The  fact,  on 

1  By  making  this  distinction,  a  sufficient  answer  may  be  given  to  tlie 
strictures  offered  in  the  House  of  Lords,  May  16,  1861,  by  Lords  Kingsdown 
and  Cranworth,  and  the  Lord  Chancellor  (Westbury),  to  the  effect  that  the 
government  of  the  United  States  ought  not  to  claim  the  rights  of  a  belliger- 
ent as  against  foreign  commerce,  by  search  and  blockade,  and  yet  treat  the 
rebels  as  traitors.     Dana's  Wheaton  Int.  Law,  editor's  note,  84  (p.  198). 

2  There  could  be  no  more  "  war-power  "  over  slavery,  in  the  case  of  war 
with  another  nation,  in  Congress  than  in  the  President.  Therefore  the 
emancipation  founded  on  the  forfeiture  of  the  owner's  right,  as  provided  by 
sec.  4  of  the  Act  of  Congress  of  August  6,  1861,  12  Stat.  U.  S.  319,  was 
equally  without  support  from  any  doctrine  of  war  powers  as  previously 
known  in  international  law. 

^  In  his  opinion  in  the  Amy  Warwick,  Judge  Sprague  had  asserted  the 
existence  of  a  new  sort  of  belligerency,  one  in  which  the  rights  were  all  for 
one  party,  and  the  liabilities  all  for  the  other.  "  They  [the  rebels]  are  both 
belligerents  and  traitors,  and  subject  to  the  liabilities  of  both  ;  while  the 
United  States  sustains  the  double  character  of  a  belligerent  and  a  sovereign, 
and  has  the  rights  of  both.  These  rights  coexist,  and  may  be  exercised  at 
pleasure."  2  Sprague's  Decisions,  132.  This  dictum  seems  to  have  given 
the  key-note  for  many  later  judicial  voices.  The  sovereign's  rights,  as  to 
rebel  subjects  when  belligerents,  are  supposed  to  be  derived  from  inter- 
national law,  though  greater  than  any  claimed  in  a  war  between  two  na- 
tions. In  the  Confiscation  cases  (Fifth  Circuit,  Slidell's  land),  1  Wood,  229, 
Judge  Bradley  said  :  "  A  belligerent  has  a  right  to  take  such  course  and 
impose  such  conditions,  with  regard  to  the  confiscation  of  enemies'  property, 
as  it  sees  fit.     The  rules  which  it  prescribes  are  not  to  be  questioned  by  any 


200  THE   DISTINCTION   IN   BELLIGERENCY. 

The  Argument  from  Necessity. 

the  contrary,  is  that,  whatever  powers  such  sovereign  may 
have,  as  belligerent,  in  respect  to  such  subjects,  they  are 
inferior  to  those  he  already  has  as  sovereign.  The  bel- 
ligerency of  the  rebel  force  is  a  diminution,  for  the  time, 
of  his  legislative  power,  to  which  he  is  compelled  to  sub- 
mit. The  power  which  a  sovereign  gains,  under  these 
circumstances,  is  gained  in  respect  to  neutrals,  in  situa- 
tions to  which  his  sovereignty  cannot  extend  in  time  of 
peace. 

If  it  be  once  conceded  that  the  government  of  the 
United  States  occupied  the  position  of  sovereign  in  re- 
spect to  the  inhabitants  of  the  eleven  States,  all  the  pecu- 
liar reasoning  as  to  "  peculiar  property  "  and  "  peculiar 
situation  "  is  superfluous.  The  difficulty  has  been  in  try- 
ing to  reconcile  pretensions  to  powers,  like  those  claimed 
in  the  Confiscation  Acts  and  the  Emancipation  Proclama- 
tions, with  the  assumed  continuance  of  the  eleven  States 
as  political  personalities. 

It  may  have  been  commonly  argued  that  the  confisca- 
tion legislation  of  Congress,  and  the  Emancipation  by 
proclamation  of  the  Executive,  were  essential  measures  for 
suppressing  the  rebellion.  This  is  an  argument  which 
assumes  the  right  and  duty  of  the  government  to  resist 
secession  as  rebellion  ;  an  assumption  which,  whether  well 
founded  or  not,  must  now  be  accepted  because,  as  politi- 
cal fact,  secession  has  been  resisted  as  rebellion.      But  the 

code  except  the  law  of  nations  and  its  own  Constitution.  Tlie  rights  of  a 
government  against  its  own  citizens  in  insurrection  are  not  less,  but  are 
ratiier  greater,  than  those  it  may  exercise  towards  a  foreign  enemy.  But, 
in  either  case,  tlie  enemies'  property  may  he  confiscated  simply  as  such,  if 
the  government  so  determine."  And  in  another  passage,  —  "  It  may  be 
very  true,  and  I  am  inclined  to  think  it  is  true,  that  the  constitutional  pro- 
vision wliich  declares  that  no  attainder  of  treason  shall  work  corruption  of 
blood  or  forfeiture,  except  during  the  life  of  the  person  attainted,  does  not 
apply  to  the  confiscation  of  enemies'  property,  even  tliough  those  enemies  be 
rebels  against  the  government  and  guilty  of  treason."  lb.  p.  233.  In  this 
logical  fahacy,  international,  municipal,  and  constitutional  law  are  iuvolved 
in  inextricable  confusion. 


THEORY   OF   OUR   NATIONAL   EXISTENCE,  201 

Legislative- Power  arising  from  State-Lapse. 

general  position  of  necessity  is  one  which  no  government 
existing  under  latv^  —  a  written  constitution  in  this  case, 
—  has  a  right  to  assume.  A  necessity  for  violating  the 
Constitution  in  order  to  maintain  the  Constitution  is  con- 
tradiction.^  And  the  argument  is  not  bettered  in  the  least 
by  calling  it  the  necessity  for  preserving  "  the  integrity  of 
the  Union,"  or  ''  the  life  of  the  nation,"  or  "  the  national 
existence."  If  the  limitations  imposed  upon  a  government 
holding  delegated  powers  are  inconsistent  with  attaining 
these  great  objects,  they  are  not  the  objects  for  which  such 
government  was  instituted,  and  the  necessity  cannot  be 
supposed.^ 

But  under  that  view  of  the  effect  of  the  State  ordi- 
nances of  secession,  supported  to  the  extent  of  civil  war, 
which  I  have  presented  in  beginning  this  chapter,  the 
municipal  laws  of  the  eleven  States  continued  in  force 
only  as  laws  deriving  their  validity  from  the  sovereign 
represented  exclusively  by  Congress,  and  all  rights  of  per- 
sons and  property,  real  or  personal,  existed  therein  subject 
to  the  legislative  power  of  Congress,  limited  only  by  the 
provisions  in  the  Constitution  of  the  United  States ;  as 
the  powers  of  the  pre-existing  State  governments  had  been 
limited  by  the  State  constitutions ;  and,  as  to  suljjects  of 
foreign  countries,  by  the  law  of  nations.  There  was  am- 
ple room  for  legislation,  as  efhcacious  as  any  contained  in 
the  Confiscation  Acts,  for  the  purpose  of  suppressing  and 
punishing  rebellion. 

This  legislative  power,  thus  ascribed  to  Congress  under 
the  theory  of  State-lapse,  is  entirely  distinct  from  any 
claim  of  a  "  war-power  "  legislation,  such  as  was  advanced 

^  Which  is  answer  enough  to  all  such  reasoning  as  that  of  Mr.  Justice 
Miller  in  Tyler  v.  Defrees,  ante,  p.  72. 

2  As  in  Mr.  Lincoln's  arguments  for  military  emancipation,  ante,  p.  195 n. 
The  argument  for  war-power  confiscation  acts,  and  war-power  emancipa- 
tion, is  equivalent  to  saying  that,  in  order  to  suppress  a  rehellion  it  is  proper 
to  resort  to  measures  which  declare  that  it  is  no  rebellion  at  all. 


202  THE   DISTINCTION    IN   BELLIGERENCY. 

Confiscation  and  Emancipation  as  in  a  Territory. 

to  support  the  Confiscation  Acts,  and  such  as  might  with 
equal  consistency  have  been  claimed  for  Congress  in 
reference  to  the  emancipation  of  the  slaves  in  tlie  States 
affected  by  the  rebellion.^ 

This  legislation  of  Congress,  being  simply  in  the  nature 
of  ordinary  municipal  statute  law  for  Territories  of  the 
United  States,  could  be  so  framed  as  to  apply  to  any  or  all 
property,  real  or  personal,  and  to  any  or  all  persons  found 
in  the  districts  to  which  such  legislation  should  be  di- 
rected ;  to  resident  aliens,  as  well  as  to  others.  And  there 
would  be  no  room  for  questions  with  neutral  nations  as  to 
the  rights  of  their  subjects  being  such  resident  aliens  in 
these  districts,  such  as  might  arise  in  the  case  of  aliens, 
subjects  of  neutral  nations,  being  within  the  territory  of 
one  nation,  durin-g  a  war,  or  upon  a  conquest,  as  against 
the  belligerent  or  political  rights  of  another,  and  might 
arise  if  the  eleven  States  were  to  be  considered  as  con- 
quered in  an  international  war. 

Congress  therefore,  under  this  view,  had  the  power 
over  tlie  status  of  all  natural  persons  within  the  eleven 
lapsed  States,  as  in  the  case  of  an  organized  Territory  of 
the  United  States,  and  any  legislation  by  proclamation  on 
the  part  of  the  Executive  was  usurpation  of  a  function 

1  As  was,  I  believe,  claimed  by  Mr.  Sumner.  Any  legislative  power  aris- 
ing from  an  existing  belligerent  status  is  obviously  a  different  matter  from  any 
power  vested  in  Congress,  by  the  Constitution,  to  create  a  state  of  belliger- 
ency, or  to  recognize  a  state  of  belligerency,  eitiier  in  a  civil  war  or  a  pub- 
lic international  war,  which  was  questioned  in  tiie  Prize  Cases,  ante,  p.  50. 
The  fact  that  it  takes  two  parties  to  make  a  war,  as  it  takes  two  to  make 
a  bargain,  creates  a  necessary  limitation,  in  two  opposite  directions,  on  any 
power  of  Congress  to  "declare  war."  It  is  clear  that  no  legislation  of  one 
party  can  institute  a  war  if  tiiere  is  no  otlier  party  wlio  will  fight ;  and,  also, 
that  if  there  is  a  party  who  is  able  and  willing  and  docs  invade  tiie  country, 
there  will  be  war,  tiiough  Congress  may  have  said  nothing  about  it.  The 
power  specified  in  the  Constitution  to  "  declare  war,  grant  letters  of  marque 
and  reprisal,  and  to  make  captures  on  land  and  water,"  Const.  Art.  1,  §  8, 
could  only  have  relation  to  war,  &c.,  as  between  nations.  A  constitutional 
arrangement  for  declaring  a  civil  war  is  as  contradictory  as  superfluous. 


THEORY  OF  OUR  NATIONAL   EXISTENCE.  203 

Treason,  in  its  Relation  to  Belligerency. 

vested  in  another  branch  of  the  government ;  indepen- 
dently of  the  facts  that  there  was  no  foundation,  such  as 
was  chiimed  for  the  power,  in  the  law  of  international 
war,  and  that,  if  such  could  be  found,  there  was  no  such 
international  war  in  this  instance  as  could  give  occasion 
for  its  application. 1 

A  doubt  as  to  the  person  recognized  as  belligerent,  i.  e., 
whether  a  political  person  capable  of  carrying  on  war,  or 
a  body  of  men  risen  in  arms  without  political  status,  must 
necessarily  have  involved  uncertainty  on  the  question 
whether  anj^  private  persons,  being  citizens  or  residents  of 
one  of  the  eleven  States  had  been  chargeable  with  treason.^ 

According  to  the  view  taken  in  this  chapter  of  the  politi- 
cal consequences  of  the  State  ordinances  of  secession  and 
civil  war,  there  could  be  no  recognition  of  the  eleven 
States  as  the  belligerent  party,  and  hence,  there  could 
have  been  no  necessary  exemption  in  the  case  of  their 
citizens,  as  individuals,  from  the  charge  of  treason  against 
their  only  sovereign,  —  the  United  (other)  States. 

At  the  same  time,  it  may  be  admitted  that  though  the 
recognition  of  belligerency  should  be  thus  limited  in  legal 
effect,  it  would  still  be  just,  for  the  sovereign  represented 

1  The  question  of  limitation  on  the  power  of  Congress  over  a  Territory, 
in  respect  to  slavery,  is  one  under  the  written  Constitution  as  law  for  the 
organized  government.  This  is  a  distinct  matter  from  the  question  of  the 
investiture  of  that  sovereign  power  from  which  that  written  Constitution 
derives  its  authority,  and  which  is  the  topic  herein  considered.  So  also  the 
questions  whether,  when  the  United  States  are  engaged  in  any  war,  the 
guarantees  of  the  Bill  of  Rights  for  the  liberty  of  the  private  citizen  may 
be  disregarded  throughout  the  country  by  the  military  authority  ;  whether 
the  writ  of  habeas  corpus  is  suspended,  ipso  facto,  by  the  existence  of  war ;  or, 
whether,  if  to  be  suspended  otherwise,  its  suspension  rests  with  the  Presi- 
dent, as  head  of  the  army,  or  with  Congress,  are  questions  under  the  written 
Constitution  as  law,  and  might  equally  arise  under  any  theory  of  the  ulti- 
mate possession  of  sovereignty.  Compare  B.  R.  Curtis,  pamphlet  on  Ex- 
ecutive Power,  Memoirs,  &c. ;  Habeas  Corpus  and  Martial  Law,  by  Joel 
Parker,  North  Am.  Rev.  vol.  3,  p.  471 ;  Lawrence's  Wheaton's  Int.  Law, 
editor's  note,  170. 

2  Compare  ante,  pp.  60,  et  seq. 


204  THE   DISTINCTION   IN   BELLIGERENCY. 

Popular  View  of  Treason. 

by  the  actually  prevailing  government,  in  determining  how 
far  the  right  to  jDunish  individual  citizens  should  be  exer- 
cised, to  consider  the  degree  in  which  the  populations 
engaged  in  insurrection  or  rebellion  had  approached  the 
status  of  an  actual  political  power,  as  deriving  legitimacy 
from  force  alone.^ 

But  tliat  inquiry  could  not  be  entertained  by  judicial 
tribunals  deciding  guilt  or  innocence  of  individual  citizens 
as  a  question  of  law.  It  is  a  political  faculty,  which  could 
only  he  exercised  by  the  government,  either  through  the 
executive  or  the  legislative  function.^ 

It  has  already  been  noticed  that  no  judicial  exposition 
of  the  law  of  treason  applicable  to  the  circumstances  of 
the  rebellion  has  hitherto  appeared  ;^  and  it  is  now  almost 
impossible  that  any  case  giving  the  opportunity  for  such 
an  exposition  should  arise.  The  question  of  treason  or  no 
treason  has  been  practically  left  to  the  vaguest  standards 
of  popular  sentiment. 

On  this  question  of  treason,  as  against  the  United  States, 
or  the  government,  it  seems  to  have  been  popularly  held 

•1  In  many  of  the  judicial  opinions  delivered  in  the  cases  which  have 
herein  been  cited,  the  dimensions,  so  to  speak,  of  tlie  rebellion  have  been 
dwelt  upon  as  adding  to  the  crime  of  individuals  on  the  one  hand,  and  to 
the  just  rights  of  the  government  on  the  other.  This  sort  of  reasoning, 
which  is  quite  in  accord  with  popular  sentiment,  shows  a  misapprehension 
of  tlie  case  ;  it  really  being  one  not  simply  under  a  municipal  law.  The 
greater  the  dimensions  of  civil  war,  the  more  it  acquires  the  character  of 
international  war ;  the  bigger  a  rebellion,  which  is  an  unsuccessful  revolu- 
tion, the  more  it  approaches  a  revolution,  which  is  a  successful  rebellion  ; 
and  the  less  the  crime  in  the  individual  citizen. 

Bella  per  Emathios  plus  quam  civilia  campos, 
Jusque  datum  sceleri  canimus. 

Lucan,  Pharsalia,  Lib.  i.,  1.  1,  2. 

^  Const.  Art.  ii.  §  2 ;  1.  "He  [the  President]  shall  have  power  to  grant 
reprieves  and  pardons  for  offences  against  the  United  States,  e.\ccpt  in 
cases  of  imijeachment."  In  United  States  v.  Klein,  ante,  p.  75,  the  Supreme 
Court  maintained  the  power  as  against  Congress. 

3  Ante,  p.  80. 


THEORY  OF   OUR   NATIONAL  EXISTENCE.  205 

Popular  View  of  Treason  and  Belligerency. 

that  the  crime  of  the  State,  as  political  person,  is  also  the 
crime  of  its  citizens,  individually  ;  or  of  those,  at  least, 
who  could  be  proved  to  have  voluntarily  engaged  in  the 
State's  act  of  levying  war  against  the  United  States,  or  in 
giving  aid  and  comfort  to  such  State  as  a  belligerent.  It 
has  been  thought  perfectly  consistent  to  hold  the  State 
responsible,  either  tinder  the  laws  of  public  war,  as  con- 
quered nation,  or  as  having,  under  the  jiublic  municipal 
law  (^.  f?.,  the  Constitution),  forfeited,  by  rebellion  as 
political  person,  its  participation  in  representation,  &c., 
and,  at  the  same  time,  to  regard  the  citizens,  acting  in 
obedience  to  or  by  the  authority  of  such  State,  as  indi- 
vidually chargeable  with  treason,  when  the  war  had  ended 
by  the  conquest  of  such  State.^  This  is  sustaining  some- 
thing in  the  nature  of  contradiction  in  terms.  The  State, 
as  political  person,  was  what  it  was  in  virtue  of  its  political 
capacity  to  command  the  obedience  of  its  citizens.  It 
could  not,  as  State,  have  been  belligerent,  except  by  having 
this  capacity  in  the  relations  which  constitute  war.  If  it 
had  this  capacity,  the  citizen  had  not  freedom  of  choice, 
and  cannot  be  accountable  in  his  own  person.  This  is  not 
so  much  doctrine  of  law,  as  it  is  only  statement  of  axioms 
underlying  all  legal  relations. 

But,  in  the  case  of  belligerency  attributed  to  a  merely 
insurrectionary  power,  the  question  of  treason  of  citizens 
is  a  legal  one,  properly  so  called;  while  the  extension  of 
amnesty  to  individuals  —  if  determined  by  the  degree  in 

1  When  this  had  been  very  forcibly  pointed  out  in  an  article  on  "American 
Secession  and  State  Rights,"  by  an  English  contributor  in  the  (Li)iulon)  Law 
Magazine  and  Law  Review  for  August,  1863,  it  was  further  illustrated  in 
letters  written  in  answer  by  Judge  Isaac  S.  Redfield,  and  Mr.  George  S. 
Hillard,  published  in  the  same  magazine  in  November,  1863,  and  February, 
18Gi,  and  reprinted  in  the  Montlily  Law  Reporter  (Boston)  for  August,  1864, 
N.  s.  vol.  xxvi.  p.  70,  361,  each  containing  a  defence  of  the  American  posi- 
tion from  the  standpoint  of  Story  and  Webster.  Another  illustration  may 
be  found  in  the  same  volume,  p.  537,  in  the  article  entitled  "  The  Legal 
Status  of  the  Rebel  States  before  and  after  their  Conquest." 


206  THE   DISTINCTION   IN   BELLIGERENCY, 

Failure  of  Illustrations  from  Feudal  Law. 

which  the  recognized  military  force  had  acquired,  as  far  as 
these  individuals  were  concerned,  the  powers  of  a  politi- 
cal state  —  is  a  political  question.^ 

Under  the  feudal  S3'stem,  the  vassals  of  a  feudatory  in 
rebellion  against  his  lord-paramount  would  not  have  been 
exculpated  from  the  charge  of  treason  against  the  latter 
by  their  fealty  to  the  former.  It  would  have  been  held 
that,  by  breach  of  his  own  allegiance,  the  feudatory  lost 
his  claim,  as  the  representative  of  his  superior,  of  fealty 
from  his  vassals,  and  that  these  then  became  the  immediate 
vassals  of  the  lord-paramount.  But  there  is  no  similar 
relation  between  the  several  States,  the  corporate  political 
peoples  of  the  several  States,  or  their  State  governments 
on  the  one  hand,  and  the  general  government  on  the 
other ;  nor  any  such  as  between  the  individual  States  on 
the  one  hand,  and  themselves  united  on  the  other  ;^  and 

1  See  the  history  of  tlie  trials  for  piracy,  during  the  war,  of  persons  on 
the  rebel  cruisers.  Dana's  Wheaton,  Int.  Law,  editor's  note,  84,  Rebels  as 
Pirates.     Lawrence's  Wheaton  Int.  Law,  editor's  note,  79. 

2  Mr.  J.  P.  Bishop,  author  of  treatises  on  Marriage  and  Divorce,  and  on 
Criminal  Law,  published  in  1865  a  pamphlet,  "  Secession  and  Slaver}^"  &c., 
in  which  it  is  said,  p.  27 :  "  These  States  are,  as  they  always  were,  bound  by 
law  to  render  allegiance  to  the  United  States;  it  is  a  fact  of  the  law  that  they 
are  so  bound."  Compare,  ante,  p.  145,  note,  a  citation  from  Brownson  and 
remark.  In  the  article  in  the  Monthly  Law  Reporter,  "  Tlie  Legal  Status 
of  the  Kebel  States,"  &c.,  already  referred  to,  occurs  this  passage,  —  "The 
people  are  by  our  Constitution  clothed  with  the  power  of  self-government ;  it 
is  their  franchise.  If  this  franchise,  this  right  of  governing,  belonged  to  a 
single  person,  called  a  prince  or  duke,  and  he  had  rebelled  against  his  suze- 
rain, can  there  be  any  doubt  that  he  would  have  forfeited  to  his  superior  his 
franchise,  his  right  of  government,  by  this  act  of  disloyalty,  when  conquered 
by  his  suzerain  ?  History  is  full  of  such  forfeitures.  The  people  here 
stand  in  the  place  of  the  duke,  and  shall  they  not  forfeit  their  franchise, 
their  right  to  govern  themselves,  by  a  like  act  of  disloyalty  and  rebellion  ? 
It  would  be  strange  if  such  were  not  the  law." 

In  the  case  supposed,  the  forfeiture  is  entirely  independent  of  any  ques- 
tion of  conquest.  In  fact,  there  is  no  conquest  when  the  suzerain  establishes 
his  authority.  In  this  curious  assertion  that  "  the  people  stand  in  the  place 
of  the  duke,"  it  is  not  explained  who  it  is  who  stands  in  the  place  of  the 
suzerain.  Probably  the  author  had  the  fetish  Constitution  before  his  mind, 
as  such  suzerain. 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  207 

Original  Failure  to  observe  the  Distinction. 

the  doctrine  of  the  Supreme  Court,  as  to  the  continuation 
of  their  State  existence,  if  it  means  any  thing,  and  the 
attribution  of  belKgerency  to  the  States,  suppose  them  to 
have  continued  in  the  exercise  of  all  their  political  capacity 
in  respect  to  their  populations. 

The  feudal  lord-paramount  was  an  actual  human  being, 
individually  and  physically  distinct  from  his  vassals.  But 
the  government  of  the  United  States  is  no  such  person. 
Presidents,  Congress,  the  judiciary,  as  men,  have  no  sov- 
ereignty, and,  as  a  whole,  the  govermnent  cannot  exist 
except  as  the  States  exist  first.  The  human  beings  hold- 
ing sovereignty  are  the  politically  organized  people,  cor- 
porately  organized  as  States  United.^ 

The  common  idea  may  still  be  that  the  eleven  States 
could  be,  and  therefore  should  be,  and  were  the  recognized 
belligerent.^  This  was  the  view,  unquestionably,  which 
the  British  government,  in  perfect  good  faith  undoubtedly, 
took  in  the  Queen's  proclamation  of  neutrality,  and  this 
also  was  accepted  by  other  countries. 

But  strangers  may  be  at  least  excused  in  seeing  us  as 
we  see  ourselves.  If  we  propose  to  be  true  to  ourselves, 
we  must,  in  our  domestic  political  law,  insist  on  the  dis- 
tinction ;  or,  otherwise,  wallow  in  the  chaos  of  contradic- 
tions in  which  the  Supreme  Court  is  floundering  like 
Milton's  Satan  on  his  way  to  the  terrestial  paradise. 

The  judiciary  has  been  forced  to  these  inconsistencies 
by  the  original  failure  on  its  own  part,  as  on  the  part  of 
the  executive  and  of  Congress,  to  make  the  distinction,  as 

1  Ante,  p.  140. 

2  This  view  has  even  got  formal  expression  in  treatises.  Dr.  Woolsey, 
in  Political  Science,  ii.  p.  250,  says  of  the  general  government :  "  It  has 
thus,  if  there  should  be  serious  resistance  to  the  laws  or  any  movement  of 
violence  in  which  a  State  is  concerned,  the  power  to  treat  such  State  as  in  a 
condition  of  war,  to  close  its  harbors  by  a  blockading  force,  to  stop  commu- 
nications with  it  by  the  post-oiBce,  or  in  any  other  way,  to  pour  troops  into 
its  territory." 


208  THE   DISTINCTION   IN   BELLIGERENCY. 

The  Southern  View  of  the  Question. 

already  shown.  Mr.  Lincoln  might  possibly  have  modi- 
fied his  view  as  the  question  of  reconstruction  proceeded, 
from  having,  perhaps,  originally  had  a  somewhat  differ- 
ent view  of  the  Union  from  that  ordinarily  accepted. 
President  Johnson,  whose  reconstruction  policy  was  essen- 
tially the  same  as  Mr.  Lincoln's,  was  supposed  to  be  of 
that  school  which,  accepting  the  several  sovereignty  of  the 
States  as  the  primal  fact  in  the  genesis  of  the  Union,  ac- 
cepts, about  half  way,  its  logical  consequences.  Congress 
had  blundered  in  the  same  way  in  its  Confiscation  Acts, 
and,  so  far  as  it  accepted  the  doctrine  of  conquest  in  the 
Reconstruction  measures^  followed  Mr.  Johnson's  lead  in 
the  view  taken  of  the  action  of  the  eleven  Southern  States, 
though  it  may  be  a  question,  as  between  them,  who  had 
the  best  claim  to  consistency. 

The  joint  committee  of  the  first  session  of  the  39th 
Congress,  commonly  known  as  the  Committee  on  Recon- 
struction, had  been  appointed  under  direction,  Dec.  13, 
1865,  "  to  inquire  into  the  condition  of  the  States  which 
formed  the  so-called  Confederate  States  of  America,  and 
report  whether  they,  or  any  of  them,  are  entitled  to  be 
represented  in  either  House  of  Congress. 

In  the  majorit}'  report  of  this  committee,  from  which 
some  passages  have  already  been  herein  cited,  it  is  said  re- 
specting the  state  of  opinion  at  the  South,  — 

"  Professing  no  repentance,  glorying,  apparently,  in  the  crime 
they  had  committed,  avowing  still,  as  the  uncontradicted  testimony 
of  Mr.  Stephens  and  many  others  proves,  an  adherence  to  the  per- 
nicious doctrine  of  secession,  and  declaring  that  they  yielded  only 
to  necessity,  they,"  &c. 

And  further  on  in  the  same  report, — 

"  While  there  is  scarcely  any  hope  or  desire  among  leading  men 
to  renew  the  attempt  at  secession  at  any  future  time,  there  is  still, 
according  to  a  large  numher  of  witnesses,  including  A.  II-  Stephens, 
who  may  he  regarded  as  good  authority  on  that  point,  a  generally 


THEOKY   OF   OUR   NATIONAL   EXISTENCE.  209 

A  Practical  Test. 

prevailing  opinion  which  defends  the  legal  right  of  secession,  and 
upholds  the  doctrine  that  the  first  allegiance  of  the  people  is  due  to 
the  State  and  not  to  the  United  States.  This  belief  evidently  pre- 
vails among  leading  and  prominent  men,  as  well  as  among  the 
masses,  everywhere,  except  in  some  of  the  northern  counties  of 
Alabama,  and  the  eastern  counties  of  Tennessee."  Reports,  1st 
Sess.  39th  Cong.  Vol.  2,  pp.  xvi.,  xvii. 

Surely  any  foreign  observer  must  smile  at  the  innocent 
simplicity  of  the  committee  in  reporting  this,  as  an  unex- 
pected phenomenon,  or  dreaming  that  anybody  could  pos- 
sibly have  believed  them,  if  they  had  reported  the  Southern 
people  as  entertaining  an  opposite  view  of  the  political 
right  of  the  question  ! 

The  South,  being  defeated  on  the  "  wager  of  battle," 
simply  left  the  victorious  party  to  carry  out  whatever 
political  doctrine  they  might  have  been  sustaining.  If  it 
was  material  for  Congress  to  learn,  at  that  time,  anybody's 
views  about  the  doctrine  of  secession,  it  should  have 
appointed  a  committee  to  proceed  through  the  Northern 
States  asking  this  question  of  each  resident  inhabitant, 
man,  woman,  or  child, — 

In  the  event  that  the  State  of  which  you  may  be  an 
inhabitant,  acting  with  ten  bordering  and  contiguous 
States,  should  be  considered  by  the  government  of  the 
United  States  as  at  war  ^  with  that  government,  or  with 
"  the  United  States,"  as  represented  by  that  government, 
would  you,  acting  conscientiously  in  view  of  your  alle- 
giance as  citizen,  adhere  to  and  give  aid  and  comfort  to  the 
general  government,  or  would  you  adhere  to  and  give  aid 
and  comfort  to  your  State  ? 

How  would  such  a  question  addressed  to  each  citizen, 
man-citizen  or  woman-citizen,  of  the  Northern  States,  at 

1  At  war ;  that  is  with  all  those  consequences  to  the  inhabitants  of  your 
State  which  follow  from  the  view  of  belligerency  sustained  by  the  Supreme 
Court  in  the  Prize  cases  and  the  Confiscation  cases. 

14 


210  THE   DISTINCTION   IN   BELLIGERENCY. 

A  Question  of  Personal  Allegiance. 

the  date  when  the  Reconstruction  committee  were  making 
up  their  majority  and  minority  reports,  have  been  an- 
swered ? 

It  is  a  question  of  a  sort  supposed  to  be  always  promptly 
answerable,  and  one  which  none  who  undertake  to  govern 
a  country  ought  to  be  afraid  to  ask.^ 

^  The  persons  whose  answer  on  this  question  would  be  material  are  not 
only  those  who  might  have  the  occasion  to  vote  on  a  question  of  secession 
by  having  tlie  elective  franchise.  The  appeal  contemplated  is  not  made  to 
any  "  people  "  as  the  corporate  source  of  political  power ;  it  is  to  all  who, 
because  they  must  individually  owe  allegiance  to  some  sovereign,  must  be 
capable  of  being  charged  for  treason  to  that  sovereign,  whoever  that  may 
be.  And  this  applies  without  reference  to  distinctions  of  sex,  age,  physical 
strength,  wealth,  education,  &c.  The  influence  of  woman  has  always  been 
a  marked  characteristic  in  civil  wars,  and,  if  correctly  reported,  it  was  a 
strong  element  at  the  South  in  favor  of  the  secession  movement. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  211 

The  Political  Question  in  the  Supreme  Court. 


CHAPTER    VI. 

The  Subject  of  the  last  Chapter  continued.  —  The  political  Action 
OF  the  Government  in  Reconstruction  examined  as  a  Recogni- 
tion OF  THE  Effect  here  ascribed  to  the  Secession  Ordinances. 

It  is  hardly  necessary  to  search  the  opinions  delivered 
by  the  several  justices  of  the  Supreme  Court  in  the  cases 
cited  in  the  first  and  second  chapters  for  passages  illustrat- 
ing their  general  recognition  that  the  question  of  the 
status  of  the  eleven  States  was  in  its  nature  a  political 
question  and,  for  that  reason,  not  such  a  question  as  could 
be  determined  by  the  court  by  being  comprehended  in  the 
description  — "  all  cases  arising  under  the  Constitution," 
—  in  the  clause  describing  the  jurisdiction  of  the  Supreme 
Court.i 

In  the  State  of  Georgia  v.  vStanton,  6  Wall.  50,  argued 
December  Term,  1867,  a  bill  in  equity  had  been  filed, 
April  15,  1867,  in  the  name  of  the  State  to  enjoin  the 
Secretary  of  War,  and  other  officers  representing  the 
executive  authority  of  the  United  States,  "  from  carrying 
into  execution  certain  Acts  of  Congress,  inasmuch  as  such 
execution  would  annul  and  totally  abolish  the  existing 
State  government  of   Georgia,  and  establish  another  and 

*  Compare  ante,  pp.  17, 19.  Abbott's  National  Digest,  V.  (published  1877), 
p.  446,  has,  under  States,  Reconstruction,  only  this  :  "  Tiie  constitutionality 
and  effect  of  various  Acts  of  Congress  for  the  Reconstruction  of  the  former 
seceded  States,  elaborately  examined  and  considered,  1867.  The  Recon- 
struction Acts,  12  Op.  of  Att.-Gen.  141  ;  1867,  The  Reconstruction  Acts,  Id. 
182."  From  which  it  would  appear  that  all  that  a  diligent  lawyer  can  find 
on  this  important  subject  is  to  be  sought  in  the  opinions  of  a  member  of  the 
Executive  Department  of  the  government,  the  Attorney-General  (Henry 
Stanbery),  on  certain  questions  of  interpretation  of  the  Acts  of  Congress,  aa 
to  which  the  "  military  commanders  "  had  asked  for  instruction. 


212  ATTITUDE   OF   THE   JUDICIARY. 

Georgia  v.  Stanton. 

different  one  in  its  place  ;  in  other  words,  -would  overthrow 
and  destroy  the  corporate  existence  of  the  State  by  de- 
priving it  of  all  the  means  and  instrumentalities  whereby 
its  existence  might,  and  otherwise  would,  be  maintained." 
Mr.  Justice  Nelson,  in  delivering  the  opinion  of  the 
court  as  to  this,  said,  ib.  p.  76 :  — 

"  This  is  the  substance  of  the  complaint  and  of  the  relief  prayed 
for.  The  bill,  it  is  true,  sets  out  in  detail  the  different  and  sub- 
stantial changes  in  the  structure  and  organization  of  the  existing 
government,  as  contemplated  in  these  Acts  of  Congress,  which,  it  is 
charged,  if  carried  into  effect  by  the  defendants,  will  work  this  de- 
struction. But  they  are  grievances  because  they  necessarily  and 
inevitably  tend  to  the  overthrow  of  the  State  as  an  organized  po- 
litical body."  -^ 

It  would  appear  that  in  this  statement  the  court  went 
even  beyond  the  allegations  in  the  bill  itself,  which  com- 
plained of  the  prospective  effect  on  the  government  of 
the  State,  whereas,  here,  the  court  seems  to  acknowledge 
that  the  execution  of  the  Acts  of  Congress  was  incom- 
patible with  the  political  nature  of  a  State  of  the  United 
States. 

The  conclusion  of  the  court,  ib.  p.  77,  was :  — 

"  That  these  matters,  both  as  stated  in  the  body  of  the  bill  and 
in  the  prayers  for  relief,  call  for  the  judgment  of  the  court  upon 
political  questions,  and  upon  rights,  not  of  persons  or  property,  but  of 
a  political  character,  will  hardly  be  denied.  For  the  rights,  for  the 
protection  of  which  our  authority  is  invoked,  are  the  rights  of  sov- 

1  Chief  Justice  Chase  was  alone  in  expressing  dissent  from  tlie  opinion 
delivered  for  tlie  court  by  Mr.  Justice  Nelson.  lie  said  :  '  Witliout  being  able 
to  yield  my  assent  to  the  grounds  stated  in  the  opinion  just  read  for  the  dis- 
missal of  the  complainant's  bill,  I  concur  fully  in  the  conclusion  that  the 
case  made  by  the  bill  is  one  of  which  this  court  has  no  jurisdiction."  It  may 
easily  be  conceived  that  the  Chief  Justice,  with  such  ideas  as  to  State-contin- 
uance as  he  afterwards  expressed  in  Texas  v.  White,  ante,  pp.  10,  14,  would 
not  be  likely  to  agree  that  there  was  any  possible  "  overthrow  of  the  State 
as  an  organized  political  body,"  whatever  might  be  the  action  of  the  general 
government  in  respect  to  the  territory  and  population. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  213 

The  Position  taken  in  the  Supreme  Court. 

ereignty,  of  political  jurisdiction,  of  government,  of  corporate  exis- 
tence as  a  State  with  all  its  constitutional  powers  and  privileges.  .  .  . 
Having  arrived  at  the  conclusion  that  the  court,  for  the  reasons 
above  stated,  possesses  no  jurisdiction  over  the  subject-matter  pre- 
sented in  the  bill  for  relief,"  &c^ 

This  case  of  Georgia  v.  Stanton  differed  from  the  cases 
which  have  been  cited  in  the  first  and  second  chapters  in 
this,  —  that  the  rights  for  the  protection  of  which  the  au- 
thority of  the  court  was  invoked  in  those  cases  were  rights 
of  persons  or  of  property,  as  referred  to  by  Mr.  Justice 
Nelson  in  his  opinion  in  this  case.  By  entertaining  juris- 
diction in  those  cases,  the  court  necessarily  accepted  any 
political  facts  upon  which  such  rights  might  depend  ;  and 
so,  if  it  did  not  decide  the  political  question,  it  furnished 
evidence  of  what  was  the  political  fact  which  had  been 
established  by  the  action  of  "  the  political  department," 
wherever  that  department  might  be  found. 

All,  then,  that  is  material  to  learn  is,  What  did  the  court 
accept  as  the  political  fact?  As  a  court,  the  judges  had 
declared  their  acceptance  of  the  political  transaction  known 
as  Reconstruction  as  being  something  for  which  they,  as  a 
court,  had  no  judicial  responsibility.  It  may,  for  the 
present  purpose  at  least,  be  assumed  that  the  Supreme 
Court  did  not  accept  it  as  successful  usurpation,  or  as  a 
revolutionary  change,  but  as  consistent  with  that  investi- 
ture of  sovereignty  from  which  the  written  Constitution 
had  derived  its  authority  for  the  members  of  the  court  as 
well  as  for  others,  and  that  this  was  so,  whether  the  court 
held  that  "  the  political  department "  had  treated  the 
eleven  States  as  always  States,  each  being  on  an  equality 

1  From  the  language  of  the  same  judge  in  Re  Egan,  ante,  p.  44,  note,  it 
appears  that  he  had  an  opinion  on  the  political  question  of  State-existence 
which  he  could  express  in  a  case  where  the  rights  of  persons  depended  on 
such  question.  Compare,  also,  Grier,  J.,  with  Swayne  and  Miller,  JJ.,  in 
Texas  v.  White,  ante,  pp.  17,  18,  and  Swayne,  J.,  in  White  v.  Hart,  ante, 
p.  19. 


214  THE   QUESTION   NOT   JUDICIAL. 

The  Judicial  Conception  of  a  State. 

with  any  one  of  the  other  States,  or  had  treated  them  as 
something  else.^ 

Several  of  the  justices,  a  majority  of  the  court  prob- 
ably, have  indeed  indicated  their  views  on  this  alternative 
by  saying  in  very  positive  terms  that  these  States  were 
always  and  must  be  always  States.  Passages  may  be  cited 
from  opinions  delivered  in  the  cases  already  described 
wliich  may  be  thought  to  indicate  that,  in  recognizing  the 
existence  of  a  power  in  Congress  adequate  to  sustain  its 
action  in  Reconstruction,  the  court  has  ascribed  it  to  the 
constitutional  guaranty  of  a  republican  government,^  and 
that  this,  of  itself,  is  an  acknowledgment  of  the  continuity 
of  State  existence.  But  those  allusions  to  the  guaranty 
appear  to  be  quite  as  applicable  to  the  case  of  the  organ- 
ization of  territory  which  has  never  been  under  a  State 
government,  and  are  therefore  not  inconsistent  with  the 
recognition,  in  this  case  of  reconstruction,  of  either  the 
theory  of  conquest  or  of  State-lapse. 

So  far  as  the  Supreme  Court  has  designated  these  States 
as  the  recipient  of  the  guaranty,  it  has  done  so  either  — 

1.  In  that  sense  of  the  word  State  which  Chief  Justice 
Chase,  in  Texas  v.  White,  called  "  the  primary  conception 
of  a  people  or  community,"  —  "■  the  people,  in  whatever 
territory  dwelling,  either  temporarily  or  permanently,  and 
whether  organized  under  a  regular  government  or  united 
by  looser  and  less  definite  relations,"  ^  ante,  pp.  10,  11  ;  or 
else  — 

1  The  court  had  no  political  doctrine  to  accept  from  the  "  political  depart- 
ment," for  Congress  had  merely  offered  to  it  a  fact,  without  describing  its 
political  nature. 

^  Contained  in  Sect.  4  of  Art.  IV.  "  The  United  States  shall  guarantee 
to  every  State  in  this  Union  a  Kepublican  Form  of  Government,  and  shall 
protect  each  of  them  against  Invasion;  and,  on  the  application  of  tlie  Legisla- 
ture, or  of  the  Executive  (when  tlie  Legislature  cannot  be  convened),  against 
domestic  Violence." 

8  Which  was,  apparently,  also  Mr.  Justice  Bradley's  idea  in  saying : 
"  Whether  the  community  of  people  constituting  the  several  States  remained 


THEORY   OF   OUB    NATIONAL   EXISTENCE.  215 

The  Question  of  State  Existence. 

2.  As  Mr.  Justice  Swayne,  in  White  v.  Hart,  described 
the  State  of  Georgia,  that  is,  as  a  political  personality 
owing  "  constitutional  duties  and  obligations  "  to  some- 
body, and  liable  to  such  "  disabilities  and  penalties "  as 
might  be  "  visited  upon  her"  by  somebody  "for  her  share 
of  the  guilt  of  the  Rebellion,"  and  of  receiving  at  last  "  con- 
donation by  the  general  Government."    (^Ante^  pp.  18, 19.) 

The  first  of  these  descriptions,  as  applied  to  the  eleven 
States,  is  rather  more  in  harmony  with  a  doctrine  of 
State-lapse,  or  State-suicide,  than  with  any  other. 

It  being  assumed  that  no  member  of  the  Supreme  Court 
has  taken  the  ground  that,  at  some  period  between  the  end 
of  the  war  and  the  date  of  these  cases,  a  revolution  had 
occurred,  changing  entirely  the  previous  relations  between 
the  States  and  the  general  Government  and,  simultaneously, 
the  allegiance  of  each  inhabitant  of  the  United  States,  it 
seems  to  me  that  Mr.  Justice  Swayne 's  language,  as  applied 
to  the  eleven  States  alone,  is  in  harmony  with  Reconstruc- 
tion on  the  basis  of  conquest,  and  only  on  that. 

But  if  the  rights  of  persons  and  of  property  involved  in 
the  cases  in  which  this  is  affirmed  could  have  been  decided 
on  the  merits  in  the  same  manner  if  the  court  had  held 
that  these  States  had  been  treated  as  Territories  of  the 
United  States,  the  language  of  a  judicial  opinion  is  of  very 
little  value  as  evidence  of  the  actual  political  fact,  in  com- 
parison with  the  measures  themselves  which  were  enforced 
by  "the  political  department."  ^ 

Besides,  independently  of  the  actual  failure  of  the  ju- 
dicial department  to  settle  this  question,  it  results  from 
the  very  nature  of  the  judicial  function,  as  limited  to  the 
determination  of  questions  under  the  written  Constitution 
as  law^^  that  it  is  as  open  now  as  it  ever  was  to  each  citi- 

States  during  the  insurrection  is  of  no  consequence  to  the  argument,"  — in 
Keith  V.  Clark,  ante,  p.  33. 

1  Compare  ante,  p.  150.  2  Ante,  p.  5. 


216  POLITICAL   NATURE   OF   THE   QUESTION. 

Action  of  the  Thirty-Ninth  Congress. 

zen  of  the  United  States,  and  as  it  must  forever  be  to  all 
foreign  observers,  to  discuss  the  real  question  of  political 
fact,  that  is,  whether  the  prevailing  belligerent,  represented 
by  the  general  Government,  had  accepted  the  existence  of 
the  eleven  States  as  States  of  the  United  States,  co-ordinate 
members  of  the  Union,  or,  on  the  contrary,  had  accepted 
them  only  as  geographical  portions  of  the  domain  of  the 
United  States,  and  as  being  States  only  as  land  and  inhabi- 
tants may  be  called  such,  apart  from  any  possession  of  those 
political  rights  and  powers  which  the  States  ordinarily  ex- 
ercise. 

The  political  action  which  it  is  most  important  to  notice 
as  involving  some  determinative  view  of  our  national  ex- 
istence is  that  which  is  ordinarily  termed  the  Reconstruc- 
tion legislation  of  the  thirty-ninth  Congress  at  its  second 
session,  contained  in  the  Act  of  March  2,  1867,  entitled, 
"  An  Act  for  the  more  Efficient  Government  of  the  Rebel 
States,"  with  the  supplementary  Acts,  as  they  have  been 
already  in  part  described,  ante^  pp.  40,  41. 

There  were  other  measures  of  a  legislative  nature,  in- 
cluding in  this  description  legislation  embodied  in  the  form 
of  constitutional  amendment  as  well  as  ordinary  statute 
law,  adojited  before  or  after  this  particular  statute,^  which 

1  Most  of  this  legislation  may  be  said  to  have  grown  out  of  the  policy 
adopted  by  the  executive  department  in  reference  to  the  slave  population  of 
the  States  of  the  Confederacy ;  as,  particularly,  "  A  Bill  to  establish  a  Bureau 
for  the  Kelief  of  Freedmen  and  Refugees,"  passed  March  3,  I860,  13  U.  S. 
Stat.'  507,  and  "  An  Act  to  protect  all  Persons  in  the  United  States  in  their 
Civil  Rights  and  furnish  the  Means  of  their  Vindication,"  passed  April  9, 
1866,  14  U.  S.  Stat.  p.  27,  commonly  called  the  Civil  Rigiits  Bill.  This  bill 
might  seem  to  have  been  passed  by  Congress  in  anticipation  of  powers  to  be 
derived  from  the  Fourteenth  Amendment,  which,  however,  liad  not  tlien  even 
been  proposed  by  Congress  for  adoption.  Some  of  the  supporters  of  the 
bill,  however,  appear  to  have  based  the  statutory  power  on  the  clause  in 
Art.  iv..  Sect.  2,  of  the  Constitution  :  "  The  citizens  of  each  State  sliall  be 
entitled  to  all  privileges  and  immunities  of  citizens  in  the  several  States." 
See  Mr.  Bingham's  speech,  Cong.  Globe,  1st  Sess.  30th  Cong.  p.  158 ;  Wil- 
son's History  of  the  Reconstruction  Measures,  &c.,  p.  52. 


THEORY   OF   OUR   NATIOISTAL  EXISTENCE.     ^        217 

Relation  of  the  Amendments  to  the  States. 

were  calculated  to  affect  permanently  the  ordinary  powers 
and  jurisdiction  of  tlie  several  States  whose  position  at  the 
close  of  the  war  was  in  question.  These  measures  were 
considered  by  the  persons  then  administering  the  govern- 
ment of  the  United  States  to  be  politically  necessary  in 
view  of  the  future  exercise  by  the  States  of  the  rebel  Con- 
federacy of  the  powers  held,  or  to  be  held,  by  each  and 
every  State  of  the  Union.  In  a  sense,  therefore,  they 
might  be  considered  part  of  the  general  system  of  Recon- 
struction, as  applied  to  these  States  particularly.  But,  as 
they  were  not  limited  in  their  legislative  effect  to  the  States 
compromised  by  the  Rebellion,  but  affected  the  separate 
powers  and  jurisdiction  of  every  other  State  as  well,  they 
must  be  distinguished  from  measures  confined  in  their 
effect  solely  to  the  determination  of  the  political  position 
of  these  particular  States. 

Among  these  measures  were  Articles  xiii.,  xiv.,  and  xv., 
of  Amendments  to  the  Constitution.^    These  amendments, 

1  On  the  supposition  that  the  eleven  States  were  properly  included  in  the 
whole  number  of  States,  the  consent  of  some  of  them  was  necessary  to 
secure  the  requisite  proportion  of  three  fourths.  Art.  xiii.,  proposed  Feb.  1, 
18G5,  ratification  declared  Dec.  18,  18G5,  13  U.  S.  Stat.  774,  Virginia,  Louisi- 
ana, Arkansas,  South  Carolina,  Alabama,  North  Carolina,  Georgia,  and 
Tennessee  being  computed  in  the  ratifying  three  fourths,  at  which  date  none 
of  these  States  were  represented  in  Congress,  all,  except  Tennessee,  being 
then  under  governments  declared  to  have  been  illegal  by  the  Reconstruction 
Act  of  March  2,  1867,  and  its  supplements ;  ante,  p.  40.  Art.  xiv.,  proposed 
June  16,  1866,  ratification  declared  July  28, 1868, 15  U.  S.  Stat.  708.  Among 
the  States  computed  in  the  ratifying  three  fourths  were  those  whose  adop- 
tion of  this  article  had  been  declared  a  condition  of  admission  to  representa- 
tion by  "  An  Act  to  admit  the  States  of  North  Carolina,  South  Carolina, 
Louisiana,  Georgia,  Alabama,  and  Florida  to  Representation  in  Congress," 
passed  June  2-5,  1868,  15  U.  S.  Stat.  73.  Arkansas  was  also  counted  as 
ratifying,  whose  admission  to  representation  in  Congress  had  been  declared 
to  be  due  to  her  antecedent  ratification  of  this  amendment,  by  "  An  Act  to 
admit  the  State  of  Arkansas  to  Representation  in  Congress,"  passed  June 
22,  1868,  15  U.  S.  Stat.  72.  Art.  xv.,  proposed  Feb.  27, 1869,  ratification  de- 
clared March  30,  1870,  16  U.  S.  Stat.  1131.  Among  the  States  computed 
in  the  ratifying  three  fourths  were  those  whose  ratification  of  this  amend- 
ment had  been  declared  a  condition  of  admission  to  representation  by  Sect.  6 


218  THE   RECONSTRUCTION   LEGISLATION. 

Position  of  Tennessee. 

being  adopted,  have  equal  effect  as  law  throughout  all 
the  States  and  Territories  of  the  United  States.  But 
some  index  of  the  political  position  of  the  States  com- 
promised by  the  Rebellion  is  given  by  the  political  action 
of  the  Government  when  calculating  the  total  number  of 
States  of  which  the  consent  of  three  fourths  was  necessary 
for  the  adoption  of  any  amendment,  as  well  as  by  its 
accepting  the  determination  of  any  of  these  States  in  esti- 
mating the  required  three  fourths. 

Already,  some  months  before  this  second  session  of  the 
Thirty-ninth  Congress,  a  new  Constitution  for  the  State 
of  Tennessee  ^  had  been  adopted  by  the  action  of  the 
political  people  of  the  State  as  the  same  had  been  con- 

of  "  An  Act  authorizing  the  Submission  of  tlie  Constitutions  of  Virginia, 
Mississippi,  and  Texas  to  a  Vote  of  the  People,  and  autliorizing  the  Election 
of  State  Officers  provided  by  said  Constitutions,  and  Members  of  Congress," 
passed  April  10,  1869,  16  U.  S.  Stat.  1131. 

1  In  a  resolution  of  Congress,  Feb.  18,  18G5,  13  U.  S.  Stat.  p.  567,  Ten- 
nessee was  named  as  one  of  the  States  which,  having  "  rebelled  against  the 
government  of  the  United  States,  .  .  .  were  in  such  condition  "  that  no 
valid  election  for  electors  of  President  could  be  had. 

"  The  joint  Resolution  restoring  Tennessee  to  her  Relations  to  the  Union," 
14  U.  S.  Stat.  p.  364,  reads  :  "  Whereas,  in  the  year  eighteen  hundred  and  sixty- 
one,  the  government  of  the  State  of  Tennessee  was  seized  upon  and  taken 
possession  of  by  persons  in  hostility  to  the  United  States,  and  the  inhabitants 
of  said  State,  in  pursuance  of  an  Act  of  Congress,  were  declared  to  be  in  a 
state  of  insurrection  against  the  United  States  ;  and  whereas  said  State 
government  can  only  be  restored  to  its  former  political  relations  in  the  Union 
by  the  consent  of  the  law-making  power  of  the  United  States  ;  and  whereas 
the  people  of  said  State  did,  on  the  twenty-second  of  February,  eighteen 
hundred  and  sixty-five,  by  a  large  popular  vote,  adopt  and  ratify  a  Consti- 
tution of  government  whereby  slavery  was  abolished,  and  all  ordinances  and 
laws  of  secession,  and  debts  contracted  under  the  same  were  declared  void ; 
and  whereas,  a  State  government  has  been  organized  under  said  Constitu- 
tion whicli  has  ratified  the  amendment  to  the  Constitution  of  the  United 
States  abolishing  slavery,  also  the  amendment  proposed  by  the  Thirty-ninth 
Congress,  and  has  done  other  acts  proclaiming  and  denoting  loyalty  :  There- 
fore — 

"Be  it  resolved  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled.  That  the  State  of  Tennessee  is 
hereby  restored  to  her  former  proper,  practical  relations  to  the  Union,  and  is 
again  entitled  to  be  represented  by  senators  and  representatives  in  Congress. 
Approved  July  24,  1806." 


THEORY   OF   OUR   NATIONAL   EXISTENCE,  219 

History  of  tlie  Act  of  March  2,  1867. 

stitutecl  under  its  previously  existing  laws,  a  new  State 
government  under  that  Constitution  had  been  elected, 
and  senators  and  representatives  from  the  State  had  been 
received  in  Congress. 

The  admission  of  the  State  of  Tennessee  may  be  called 
one  of  the  measures  of  Reconstruction.  But  it  would  be 
difficult  to  gather  from  the  history  of  the  State  during  the 
war  and  before  this  admission,  or  from  the  j^olitical  facts 
recited  in  the  resolution  of  Congress  declaring  its  recon- 
struction, restoration,  recognition,  or  whatever  else  it  may 
be  called,  any  political  doctrine  of  general  application.^ 

As  the  case  of  this  State  presented  differences  more  or 
less  essential,  as  compared  with  the  general  circumstances 
of  the  other  States  of  the  Confederacy,  a  further  notice  of 
its  particular  relations  with  the  general  Government  may 
be  here  waived,  in  proceeding  with  the  examination  of  the 
general  inquiry. 

This  Act  of  March  2,  1867,  as  passed,  is,  in  all  essential 
parts,  identical  with  the  bill  which,  Feb.  15,  1867,  was 
returned  from  the  Senate,  with  amendments,  to  the  House, 
having,  in  the  first  instance,  passed  the  House  on  the  13th 
of  the  same  month. 

This  bill  had  originally  been  reported  in  the  House  as 
from    the    Joint  Committee    on  Reconstruction,^  by  Mr. 

1  See  a  summary  account  of  this  transaction  in  Wilson's  History  of  Ee- 
construction,  pp.  303-313. 

2  House  Journal,  2d  Sess.  39th  Cong.  p.  402;  Cong.  Globe,  2cl  Sess. 
39th  Cong.  p.  1036.  This  committee  had  originally  been  appointed  at  the 
first  session  of  this  Congress,  and  as  a  joint  committee  its  existence  was 
limited  to  the  duration  of  the  session.  "  In  the  House,  on  the  second 
day  of  the  second  session,  Mr.  Stevens  introduced  a  concurrent  resolution 
that  the  same  committee  should  be  reappointed.  It  was  adopted  without  a 
division,  and  concurred  in  by  the  Senate  on  the  following  day."  Wilson's 
History  of  tiie  lleconstruction  Measures  of  the  39th  and  40th  Congresses, 
p.  334.  The  majority-report  from  this  committee,  June  8,  1866  (ante,  p.  42), 
is  officially  printed  under  the  title,  "  Report  of  the  Committee  on  Recon- 
struction." It  does  not  appear  therein  how  the  committee  had  acquired  this 
title.     The  heading  of  the  report  is,  "  The  joint  committee  of  the  two  Houses 


220  THE   RECONSTRUCTION   LEGISLATURE. 

The  Reconstruction  Clauses  of  the  Bill. 

Stevens,  the  chairman,  on  Feb.  6,  1867,  with  the  title  "  A 
Bill  for  the  more  Efficient  Government  of  the  Insurrec- 
tionary States." 

As  originally  reported  from  the  committee,  and  as  it  had 
passed  the  House  before  going  to  the  Senate,  the  provisions 
of  this  bill  related  only  to  the  establishment  of  military 
governments  in  the  ten  States  mentioned  in  the  bill,  and 
were  substantially  those  embodied  in  the  first  four  sections 
of  the  bill  as  finally  passed.  It  contained  no  provisions 
similar  to  those  in  the  fifth  section  of  the  bill,  as  amended 
in  the  Senate,  and  as  finally  enacted. 

This  section,  which  is  the  only  part  of  the  statute  to 
which  the  word  Reconstruction  can  be  applied  as  a  descrip- 
tive term,  indicates  a  totally  different  political  intention 
from  that  manifested  in  the  first  four  sections,  even  though 
there  may  be  no  necessary  incompatibility  between  the 
two  parts  of  the  Act,  as  based  on  different  conce^jtions  of 
the  existence  of  these  States. 

This  will  explain  the  circumstance  that  the  members  of 
the  House  and  of  the  Senate  who  voted  for  the  Act  as 
finally  passed  were  distinguishable  as  those  who,  while 
they  favored  the  original  bill,  opposed  the  amendment, 
and  those  who,  while  they  favored  the  amendment,  opposed 
the  original  bill.^ 

Independently  of  any  inferences  from  the  several  pro- 
visions of  the  Act  itself  as  finally  passed,  some  indication 
of  the  political  ideas  of  Congress  may  be  gathered  from 
the  history  of  its  passage  through  the  Senate  and  House. 

of  Congress,  appointed  under  the  concurrent  resolution  of  Dec.  13,  1865, 
with  direction  '  to  inquire  into  the  condition  of  the  States  which  formed  the 
so-called  Confederate  States  of  America,  and  report  whether  they,  or  any  of 
them,  are  entitled  to  be  represented  in  either  House  of  Congress,  with  leave 
to  report  by  bill  or  otherwise,'  ask  leave  to  report." 

1  This  division  of  opinion  among  those  who  finally  voted  to  pass  the 
entire  statute,  being  two  thirds  of  each  House,  was  entirely  independent  of 
the  then  existing  party  distinctions,  and,  for  the  same  reason,  the  speakers 
among  the  minority  opposing  the  entire  statute  rested  their  objections  to  the 
original  bill  and  to  the  amendment  on  distinctly  different  grounds. 


THEOKY  OF   OUR   NATIONAL   EXISTENCE.  221 

Keport  of  the  Committee  on  Keconstruction. 

The  report  made  by  the  majority  of  the  same  com- 
mittee at  the  previous  session,  June  8,  1866,  has  already 
been  cited  {atite,  p.  48)  as  a  document  which  might  be 
expected  to  contain  some  declarations  which  should  be  re- 
ceived as  an  opinion,  of  greater  or  less  authority,  as  to 
the  position  or  relations  of  a  State  of  the  Confederacy 
towards  the  United  States,  as  represented  by  the  general 
Government. 

By  the  renewal  of  the  committee  at  this  second  session 
of  the  same  Congress,  this  report  stands  in  the  same  con- 
nection with  the  bill  offered  at  this  session  by  Mr.  Ste- 
vens as  it  had  with  any  of  "  the  specific  recommendations 
submitted  "  at  the  first  session  by  the  majority,  at  the 
same  time  with  their  report.      (Atite,  p.  48.)  ^ 

Here,  therefore,  it  is  again  referred  to  as  it  may  be  his- 
torically connected,  in  the  relation  of  apparent  motive  to 
recorded  action,  with  the  measures  enforced  under  the 
legislation  of  Congress  at  this  crisis  ;  and  it  is  in  that  con- 
nection that  the  opinions  of  those  who  signed  this  report 
are  noticeable  in  following  the  line  of  inquiry  already  in- 
dicated.^ 

1  These  are  found  on  the  introductory  pages  (iv.,  v.)  of  the  report,  in  a 
proposed  amendment  which  afterwards  became  the  Fourteenth  Article  of 
Amendments  {a)ite,  p.  217,  note),  and  two  proposed  bills,  one  entitled  "A  Bill  to 
provide  for  restoring  to  the  States  lately  in  Insurrection  their  full  Political 
Rights."  This  appears  to  have  been  that  which  was  reported  to  the  House 
April  30,  1866,  as  House  Bill,  No.  543.  It  provided  that,  "  whenever  the 
above-recited  amendment  shall  have  become  part  of  the  Constitution  of  the 
United  States,  and  any  State  lately  in  insurrection  shall  have  ratified  the 
same,  and  shall  have  modified  its  Constitution  and  laws  in  conformity  there- 
with, the  senators  and  representatives  from  such  State,  if  found  duly  quali- 
fied, may,  after  having  taken  the  required  oaths  of  office,  be  admitted  into 
Congress  as  such."  This  appears  to  have  been  the  bill  which,  according  to 
Mr.  Blaine's  statement  in  the  House  Feb.  12,  1867,  "  was  kicked  under  the 
table  in  both  branches.  It  was  so  far  scouted  that  it  never  had  a  third 
reading."    Cong.  Globe,  2d  Sess.  39th  Cong.  p.  1182. 

2  "  The  government  of  free  countries  is  largely  in  the  hands  of  com- 
mittees." North  Am.  Rev.,  December,  1879,  in  an  article  by  Mr.  George  S 
Boutwell,  one  of  the  committee  who  signed  this  report. 


222  THE   RECONSTRUCTION   LEGISLATION. 

Theories  apparent  in  tlie  Report. 

A  passage  from  the  report  itself  has  already  been  cited, 
ante^  p.  48,  in  which  the  signers  themselves  speak  of  "  the 
specific  recommendations  submitted  by  them "  as  "  the 
result  of  mutual  concession,  after  long  and  careful  com- 
parison of  conflicting  opinions."  I  think  it  is  also  apparent, 
from  a  comparison  of  the  several  paragraphs  which  I  have 
cited  from  the  report,  and  indicated  by  letters  in  brackets 
on  pages  43  to  46,  and  of  those  numbered  from  one  to  five 
on  pages  46,  47,  that  two  diiferent  theories  can  be  distin- 
guished as  having  been  entertained  by  the  committee  and 
as  having  been  put  fortli  in  almost  regular  alternation 
in  the  majority  report,  one  of  these  being  the  conquest 
theory,  the  other,  some  theory  Avhich,  for  convenience, 
may  be  called  the  doctrine  of  State-suicide} 

A  passage  occurs  in  a  portion  of  the  report  wliich  has 
already  been  cited,  ante^  p.  44,  which  might  seem  to  indi- 
cate that  the  action  of  Congress  was  invoked  upon  the 
basis  of  executing  the  guaranty  to  each  State  of  a  repub- 
lican government. 

The  passage  reads :  — 

"  A  State  withiu  the  Union  has  obhgations  to  discharge  as  a 
member  of  the  Union.  It  must  submit  to  Federal  laws  and  uphold 
Federal  authority.  It  must  have  a  government  republican  in  form, 
and  by  w^hicli  it  is  connected  with  the  general  government,  and 
through  which  it  can  discharge  its  obligations." 

It  may  be  thought  that  this  language  would  be  incon- 
sistent with  the  assertion  either  of  a  conquest  of  these 
States,  or  of  the  doctrine  of  their  lapse  into  a  Territorial 
condition,  ther&  being,  under  either  view,  no  "  State  in  the 
Union  "  to  receive  the  benefit  of  the  guaranty. 

This  passage  in  the  report  must,  liowever,  be  understood 
in  connection  with  the  whole  paragraph  in  which  it  stands, 
which  is  a  reply  to  the  objection  that  the  Confederate 

1  Compare  also  the  clauses  marked  [a]  and  [6]  in  the  rejected  preamble 
of  the  bill  described,  ante,  p.  37,  and  note  2. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  223 

Report  of  the  Committee  on  Reconstruction. 

States  were  still  States  of  the  Union,  and  which  grants  the 
"question"  as  a  "profitless  abstraction,"  while,  in  the 
paragraph  immediately  following,  an  answer  is  given,  con- 
cluding that  "  the  States  may,  through  the  act  of  their 
people,  cease  to  exist  in  an  organized  form."  ^ 

All  that  I  have  occasion  to  notice  in  this  connection  is 
the  political  fact  that,  judging  only  from  the  report  itself, 
the  members  of  the  majority  of  the  committee  were  divided 
as  those  who  relied  on  the  theory  of  conquest  and  those 
who  relied  on  some  theory  of  State-lapse  as  a  basis  for  re- 
construction, and  that,  therefore,  the  action  of  Congress,  if 
regarded  as  adopted  in  consequence  of  this  report,  may  be 
understood  as  intended  to  carry  out  one  or  the  other  of 
these  ideas. 

In  addition  to  the  internal  evidence  presented  by  the 
report  itself,  other  evidence  of  the  political  views  of  its 
framers  may  be  gathered  from  the  criticism  of  the  minority 
report  made  at  the  same  time,  which  is  mainly  based  upon 
the  objection  that  the  report  rendered  by  the  majority 
involves  the  assertion  that  the  eleven  States  had  been 
conquered  as  States.  Against  this  they  cite  from  the 
opinions  of  the  courts  and  declarations  of  the  government 
repudiating  the  idea  of  such  a  conquest,  and  especially 
from  the  opinions  of  Judge  Sprague  in  the  Amy  Warwick,^ 
and  of  Judge  Nelson  in  Re  Egan.^ 

The  individual  opinions  of  the  several  members  of  the 
majority  of  the  committee  maybe  more  or  less  known  from 
their  share  in  the  debates  on  this  bill,  or  from  their  declara- 
tions made  on  other  occasions. 

The  members  of  the  committee  who  signed  the  majority 
report  were,  Senators  W.  P.  Fessenden  of  Maine,  James 
W.  Grimes  of  Iowa,  Ira  Harris  of  New  York,  J.  M.  Howard 
of  Michigan,  George  H.  Williams  of  Oregon,  and  Repre- 
sentatives Thaddeus  Stevens  of   Pennsylvania,  Elihu  B. 

1  Ante,  p.  43  [d] ;  p.  45  [e].        2  To  be  cited  hereafter.        ^  ^nte,  p.  44,  n. 


224  THE   EECONSTRUCTION   LEGISLATION. 

Views  of  the  Members  of  the  Committee. 

Wasliburne  of  Illinois,  Justin  A.  Morrill  of  Vermont,  John 
A.  Bingham  of  Ohio,  Roscoe  Conkling  of  New  York, 
George  S.  Bontwell  of  jNIassachusetts.^ 

As  the  bill  introduced  in  the  House  by  Mr.  Stevens  on 
the  6th  was  nearly  the  same  as  one  introduced  on  the  4th 
of  February,  1867,  in  the  Senate  by  Mr.  Williams,^  another 
member  of  the  committee,  it  may  be  supposed  that  this 
senator  agreed  in  the  views  taken  by  Mr.  Stevens  as  to 
the  position  of  the  States  of  the  Confederacy,  as  being  con- 
quered States. 

On  the  loth  of  February  Mr.  Howard,  who  was  also  a 
member  of  the  joint  committee,  said  in  the  Senate,  in  the 
debate  on  amending  the  House  bill,  — 

"  The  principle  upon  which  the  bill  proceeds  is  the  principle  for 
which  I  have  all  along  contended,  that  the  rebel  States,  as  com- 
munities, have  been  conquered  by  the  arms  of  the  United  States  in 
the  prosecution  of  the  war  which  resulted  in  the  suppression  of  the 
rebellion  waged  by  those  States.  I  hold  that,  subject  to  the  Con- 
stitution of  the  United  States,  and  to  the  duty  of  ultimately  restor- 
ing the  rebel  States  to  their  former  standing  under  the  Constitution, 
the  government  of  the  United  States  has  the  same  power  in  refer- 
ence to  those  conquered  communities  as  it  would  have  had  they 
been  foreign  territory."  Cong.  Globe,  2d  Sess.  39th  Cong.,  p. 
1365  ;  Wilson's  Hist.  Rec.  p.  353. 

1  Those  of  the  same  committee  who  signed  the  minority  report  were 
Senator  Reverdy  Johnson  of  Maryland,  Representatives  Henry  Grider  of 
Kentucky,  and  Andrew  J.  Rogers  of  New  Jersey.  Henry  T.  Blow,  of  iMis- 
souri,  Representative,  a  member  of  the  committee,  had  not  signed  either 
report,  and  was  excused  from  attendance  during  the  second  session  on 
account  of  illness.  Mr.  Grider  had  died  before  the  session,  and  his  place 
had  been  filled  by  Mr.  Ilise,  also  a  representative  from  Kentucky. 

2  Senate  bill  No.  5G4,  read  twice  by  its  title  and  referred  to  the  Joint 
Committee  on  Reconstruction  and  ordered  to  be  printed.  Cong.  Globe, 
2d  Sess.  39th  Cong.  p.  075.  Mr.  Wilson,  History  of  the  Reconstruction 
Measures,  &c.,  p.  335,  says  that  the  two  bills  were  nearl}-  alike.  The  Senate 
bill  had  the  word  liebel,  for  In-nrrectionarji,  in  the  title,  and  also  gave  the 
President  the  power  of  appointing  the  military  connnanders,  which  in  the 
House  bill  was  given  to  "  the  general  of  the  army."  These  features  were 
placed  in  the  House  bill  after  it  had  gone  to  the  Senate. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  225 

Views  of  the  Members  of  the  Committee. 

In  the  Senate,  Feb.  3,  1866,  in  remarks  "  upon  the  con- 
dition of  the  country  in  view  of  the  veto  on  the  Freedman's 
Bureau,  and  upon  reconstruction,"  during  debate  on  reso- 
lutions from  the  House  against  the  admission  of  senators 
and  representatives  from  the  ^eleven  States,  Mr.  Fessenden, 
who  was  also  a  member  of  the  Committee  on  Reconstruction, 
had  maintained  the  doctrine  of  conquest  as  in  an  interna- 
tional war.i 

The  debates  in  the  House  on  this  bill  began  on  the  7th 
of  February,  1867,  being  opened  in  a  speech  by  Mr. 
Stevens.  The  bill  was  read  a  first  and  second  time,  and 
the  question  was  on  ordering  it  to  be  engrossed  and  read  a 
third  time.     Cong.  Globe,  pp.  1036,  1037,  with  bill  in  full. 

Mr.  Stevens  said  :  —    , 

"  This  is  a  bill  for  the  purpose  of  putting  under  governnients  ten 
States  now  without  governnients.  They  are  States  of  the  late  so- 
called  Confederacy,  as  I  have  called  them.  Other  gentlemen  have 
contended  that  they  were  States  nowhere.  I  have  differed  with 
these  gentlemen  in  this  respect.  I  have  said  that  these  were  per- 
fect States,  with  jierfect  organizations,  under  a  foreign  government. 
It  is,  at  any  rate,  certain  that  those  States  now  have  no  governments 

1  "  He  maintained  '  that  this  country  has  been  in  a  state  of  war,  decidedly 
in  a  state  of  war,  war  according  to  the  books,  war  in  its  worst  acceptation, 
war  in  the  very  strongest  meaning  of  the  term,  or  without  any  limit  or 
qualification.  If  we  have  been  in  a  state  of  war,  the  question  arises,  and  it 
is  a  very  simple  one,  and  I  think  the  whole  thing  lies  in  a  narrow  compass, 
Is  there  any  dispute  as  to  what  are  the  consequences  of  war  1  What  are  the 
consequences  of  successful  war  ?  Where  one  nation  conquers  another,  over- 
comes it  without  qualifications,  witliout  terms,  without  limits,  and  after  a 
bitter  contest  succeeds  in  crushing  its  enemy,  occupying  its  enemy's  terri- 
tory, destroying  its  ports,  what  are  the  consequences  ?  ...  Is  there  any- 
thing more  certain  than  that  the  conqueror  has  a  right,  if  he  chooses,  to 
change  the  form  of  government,  that  he  has  a  right  to  punish,  that  he  has  a 
right  to  take  entire  control  of  the  nation  and  the  people,  that  he  has  a  right 
to  exact  security  for  the  future,  and  such  security  for  his  own  safety  as  he 
may  demand  ;  that  all  these  rights  are  his,  with  only  tlie  limitation  that  he 
shall  not  abuse  them  and  conduct  them  in  a  manner  contrary  to  humanity, 
in  the  ordinary  acceptation  of  the  term  ? '  "  Wilson's  Hist.  Rec.  p.  208 ; 
Cong.  Globe,  1st  Sess.  39th  Cong.  p.  987. 


226  THE   EECONSTRUCTION   LEGISLATION. 

Views  of  the  Members  of  the  Committee. 

which  are  kuown  to  the  Constitution  andhxws  of  the  United  States  ot 
America  ;  that  for  nearly  two  years  they  have  been  lying  in  a  dis- 
organized condition.  Nearly  two  years  ago  the  army  of  a  govern- 
ment, calling  itself  the  Confederate  States  of  America,  was  conquered, 
and  the  government  was  dispersed.  By  the  law  of  nations  the 
conqueror,  after  that,  had  a  right  to  say  exactly  what  government 
should  be  administered  over  them  or  by  them,  keeping  always 
within  the  law  of  nations.  The  conqueror  had  a  right  either  to 
extend  his  own  laws  over  those  conquered  States,  or,  if  no  action 
was  taken  by  the  conqueror,  then,  by  the  law  of  nations,  the  old 
institutions  were  permitted  to  run  on  for  the  purpose  of  administer- 
ing the  local  laws  until  such  time  as  the  conquering  party  should 
act.  I  have  merely  stated  the  condition  of  those  States  according 
to  the  well-known  law  of  nations."  Cong.  Globe,  2d  Sess.  39th 
Cong.  p.  107G.1 

In  his  remarks  on  February  7,  above  cited,  Mr.  Stevens 
referred  apparently  to  some  other  members  of  the  com- 
mittee, as  the  "  other  gentlemen  who  have  contended  that 
they  were  States  nowhere."  This  may  be  supposed  to 
mean  that  others  of  the  committee  from  which  the  bill 
came  were  distinguishable  as  having  sustained,  or  proposed 
to  sustain,  a  course  of  political  action  based  on  the  as- 
sumption that  these  States  had  ceased  to  exist  as  States  or 
as  political  members  of  the  Union,  and  were  to  be  regarded 
as  being  substantially  territories  of  the  United  States ;  or 

1  Mr.  Stevens,  as  chairman,  had  at  tlie  previous  session  reported  the  bill 
from  the  same  committee  {ante,  p.  221),  which  recognized  the  existence  of 
those  States.  Mr.  Stevens  had,  however,  Jan.  3, 1867,  introduced  a  substitute 
for  that  bill,  with  a  preamble :  "  Whereas,  The  eleven  States  which  lately 
formed  the  government  called  the  Confederate  States  of  America  have  for- 
feited all  their  riglits  under  the  Constitution."  Cong.  Globe,  2d  Sess.  3flth 
Cong.  250.  From  much  of  the  argument  of  Mr.  Stevens  and  otliers  in  sup- 
porting House  Bill  No.  1143,  it  might  be  inferred  that  they  did  not  rest  the 
power  claimed  so  much  on  tlie  issue  of  tlie  war  in  1805  as  on  the  refractory 
temper  of  the  white  population  of  these  States  after  that  time,  as  sliown  by 
their  unwillingness  to  ratify  the  Fourteenth  Amendment  (see  Senator  Doo- 
little's  remarks,  Feb.  IG,  1867,  Cong.  Globe,  p.  1440),  and  by  their  treat- 
ment of  those  emancipated  under  the  Thirteentli  Amendment  confirming 
the  liberation  supposed  to  have  been  effected  by  Mr.  Lincoln's  proclamation. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  227 

Views  of  the  Members  of  tlie  Committee. 

to  employ  the  phrase  of  that  time,  these  gentlemen  had 
accepted  some  theory  of  State-suicide.^ 

In  the  debates  in  the  House,  Mr.  Boutwell  ^  supported 
Mr.  Stevens's  bill  as  originally  introduced^  and  agreed 
with  him  also  in  resisting,  as  inconsistent  with  the  pow- 
ers to  be  exercised  under  its  provisions,  the  amendments 
then  proposed,  which  wxre  incorporated  into  the  fifth 
section  of  the  Act  as  finally  passed. 

Mr.  Boutwell  did  not  in  this  debate  express  a  direct 
dissent  from  Mr.  Stevens's  doctrine  of  conquest,  though  he 
intimated  on  several  occasions  his  non-recognition  of  the 
States  as  States.  He  had  on  previous  occasions  fully 
maintained  a  doctrine  of  State-suicide,  as  in  the  resolu- 
tions offered  by  him  Feb.  16,  1864,  Cong.  Globe,  1st  Sess. 
38th  Cong.  p.  683;  Macpherson's  Pol.  Hist.  p.  328;  in 
remarks  in  a  debate  in  the  House,  May  4,  1864,  Cong, 

^  In  remarks,  Dec.  18,  .1865,  on  offering  resolutions  on  the  President's 
message,  Mr.  Stevens  said,  "  The  President  assumes  what  no  one  doubts, 
that  the  late  rebel  States  have  lost  their  constitutional  relations  to  the 
Union,  and  are  incapable  of  representation  in  Congress,  except  by  permis- 
sion of  the  Government.  It  matters  little,  with  this  admission,  whether 
you  call  tiiem  States  out  of  the  Union,  and  now  conquered  territories,  or 
assert  that  because  the  Constitution  forbids  them  to  do  what  they  did  do, 
that  they  are,  therefore,  only  dead  as  to  all  national  and  political  action, 
and  will  remain  so  until  the  Government  shall  breathe  into  them  the  breath 
of  life  anew,  and  permit  them  to  occupy  their  former  position.  In  other 
words,  that  they  are  not  out  of  the  Union,  but  only  dead  carcasses  lying 
within  the  Union."  Mr.  Stevens  proceeded  to  place  the  power  of  Congress 
on  the  clauses,  "  new  States  may  be  admitted  by  the  Congress  into  this 
Union,"  and  the  guaranty  of  republican  government  to  each  vState.  After 
which  he  proceeded  to  demonstrate  the  conquest  doctrine,  relying  on  the 
decision  of  the  Supreme  Court,  especially  citing  Grier,  J.,  in  the  Prize  cases, 
and  Mrs.  Alexander's  cotton.  (Ante,  pp.  49,  64.)  Cong.  Globe,  1st  Sess. 
39th  Cong.  p.  72  ;  Wilson's  Hist.  Kec.  p.  43. 

'  Afterwards  Secretary  of  the  Treasury. 

3  Feb.  8,  1867,  Mr.  Boutwell  said  of  Mr.  Stevens's  bill,  "  I  believe  I  am 
guilt}'  of  no  breach  of  confidence  when  I  say  that  never  has  any  report 
been  made  from  that  committee  which  was  so  unanimously  supported  by  its 
different  members  as  the  one  now  under  consideration  by  the  House  ;  nor 
has  any  bill  submitted  by  that  committee  ever  been  so  carefully  considered 
as  this."     Cong.  Globe,  39th  Cong.  p.  1122. 


228  THE   EECOXSTEUCTION   LEGISLATION. 

Amendments  proposed  by  Mr.  Bingham. 

Globe,  1st  Sess.  38tli  Cong.  p.  2103  ;  also  in  an  address 
delivered  at  Weymouth,  Mass.,  July  4,  1865,  published  in 
pamphlet  entitled  "  Reconstruction  and  its  True  Basis." 

For  reasons  already  given,  the  debate  on  Mr.  Stevens's 
original  bill  is  to  be  distinguished  from  that  on  the  pro- 
visions for  "  reconstruction,"  first  proposed  during  the 
same  debate  in  tlie  House,  and  afterwards  incorporated  in 
the  bill  by  the  Senate. 

At  the  evening  session  of  the  day  of  the  introduction  of 
the  bill,  Mr.  Bingham,  who  was  also  a  member  of  the  com- 
mittee, and  who  had  signed  the  majority  report,  asked 
leave  to  introduce  several  amendments  ;  the  first  being  to 
strike  out  the  preamble,^  because,  as  he  said,  '■'■  it  is  inter- 
preted by  the  gentlemen  who  reported  this  bill  as  being 
intended,  although  it  is  no  part  of  the  bill  and  has  no 
operative  effect,  —  as  a  solemn  declaration  on  the  part  of 
this  House  that  those  States  are  foreign  conquered  ter- 
ritories, and  that  the  people  of  those  States,  and  all  the 
people  therein,  are  alien  enemies,  captives  of  war,  and 
subject  to  the  conqueror's  will."  Cong.  Globe,  2d  Sess. 
39th  Cong.  p.  1081. 

On  the  same  day,  February  7,  Mv.  Bingham  proposed 
certain  amendments  to  the  bill  in  respect  to  regulating  the 

1  The  preamble  of  Mr.  Stevens's  bill  read,  "  Whereas,  the  pretended 
State  governments  of  the  late  so-called  Confederate  States  of  Virginia,  North 
Carolina,  South  Carolina,  Georgia,  Mississippi,  Alabama,  Louisiana,  Texas, 
and  Arkansas,  were  set  up  without  the  authority  of  Congress,  and  without 
the  sanction  of  the  people ;  and  whereas  said  pretended  governments 
aflbrd  no  adequate  protection  for  life  or  property,  but  countenance  and  en- 
courage lawlessness  and  crime,  and  whereas  it  is  necessary  that  peace  and 
good  order  sliould  be  enforced  in  said  so-called  States  until  loyal  and  repub- 
lican State  governments  can  be  legally  established,  Tliercfore,  be  it,"  &c. 
"  Tliat  said  so-called  States  shall  be  divided,"  &c. 

Mr.  Hingham  proposed  a  substitute,  reading,  "  Whereas,  it  is  necessarj' 
that  peace  and  good  order  should  be  enforced  in  the  several  States  of  Vir- 
ginia, &c.,  lately  in  rebellion,  until  said  States  respectively  shall  be  fully 
restored  to  their  constitutional  relations  to  the  United  States." 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  229 

Mr.  Bingham's  and  Mr.  Blaine's  Amendments. 

issue  of  writs  of  habeas  corpus,^  and  on  the  12th  brought 
forward  tlie  proposition  for  an  amendment  which  he  had, 
in  the  committee,  endeavored  without  success  to  have 
incorporated  with  the  bill  as  reported  by  Mr.  Stevens,^ 
and  which  consisted  in  provisions  for  reconstruction 
like  those  afterwards  embodied  in  Sect.  5  of  the  Act  as 
passed. 

After  Mr.  Bingham  had  proposed  his  amendment  of  the 
12th,  Mr.  Blaine,  of  Maine,  on  the  same  day,  "  said  he 
would  vote  for  the  bill  whether  amended  or  not,"  but 
2)roposed  as  an  amendment  a  section  which  he  urged  Mr. 
Stevens  to  accept  as  additional  to  his  own  bill,  and  which 
contained  similar  propositions  to  those  in  Mr.  Bingham's 
amendment.^ 

1  Gong.  Globe,  p.  1084.  Tliese  related  to  the  issue  of  the  writ  from 
courts  of  the  United  States  in  behalf  of  persons  in  military  custody,  and 
were  not  finally  embodied  in  the  Act.  Mr.  Bingham's  remarks  at  this 
time  had,  however,  a  general  application  to  the  propriety  of  the  whole  bill, 
and  were,  seemingly,  a  preparation  for  the  more  important  amendment  of 
the  12th,  which,  as  first  proposed,  was  a  virtual  remodelling  of  the  whole 
enactment  by  putting  the  reconstruction  provisions  in  a  first  section,  as  the 
main  object  of  the  bill,  and  making  the  original  provisions  for  military  gov- 
ernments appear  secondary  to  the  reconstruction  clauses.  In  that  form  it  is 
found  in  the  Cong.  Globe,  p.  1177. 

2  According  to  his  own  statement,  February  13.  Cong.  Globe,  p.  1212; 
Wilson's  Hist.  Rec.  p.  345. 

3  In  Mr.  Bingham's  amendment  it  was  provided  that  whenever  the  arti- 
cles recited  in  this  proposed  bill  (the  Fourteenth  of  Amendments)  "  shall  have 
become  part  of  the  Constitution  of  the  United  States,  and  any  State  afore- 
said, lately  in  insurrection,  shall  have  ratified  the  same,"  &c.  This  seems 
to  be  worded  so  that  these  States  might  be  counted  in  the  whole  number,  if 
with  their  assents  the  requisite  three  fourtlis  could  be  obtained,  or  excluded 
from  the  whole  number  if  they  withheld  their  consent.  The  same  elasticity 
seems  to  have  been  sought  in  the  language  of  the  fifth  section  as  finally 
adopted.  See  ante,  p.  41.  Mr.  Blaine's  amendment  presented  this  impor- 
tant feature,  as  he  stated  it  himself  in  the  House,  February  12  :  "It  specifi- 
cally declares  that  three  fourths  of  the  States  now  represented  in  Congress 
have  the  power  to  adopt  the  constitutional  amendment  and  does  not,  even  by 
implication,  give  them  to  understand  that  their  assent  or  ratification  is  neces- 
sary to  its  becoming  a  part  of  the  Constitution."  Cong.  Globe,  2d  Sess. 
39th  Cong.  p.  1182.    His  proposed  amendment  to  the  bill  read,  "  That  when 


230  THE   EECONSTRUCTION   LEGISLATION. 

The  Bill  as  first  passed  by  tlie  House. 

On  the  13th,  Mr.  Bingham  accepted  Mr.  Blaine's  amend- 
ment as  his  own. 

But  their  combined  efforts  to  have  the  amendment 
incorporated  into  the  bill  before  the  House  were  unsuc- 
cessful. 

The  introduction  of  these  amendments  into  his  own  bill 
was  vehemently  resisted,  at  each  step  in  its  passage,  by 
Mr.  Stevens,  who  refused  even  to  give  an  opportunity  to 
take  the  sense  of  the  House  upon  it.  He,  as  did  also  Mr. 
Boutwell,^  opposed  them  as  being  entirely  inconsistent 
with  the  power  to  be  exercised  under  his  bill,  and  a  vir- 
tual recognition  of  the  propriety  of  President  Johnson's 
general  action  in  reference  to  these  States. 

On  the  13th,  Mr.  Stevens  introduced  a  "  substitute  "  for 
his  original  bill,  differing  only  b}-  a  slight  modification  of 
its  phraseology  "•  to  make  the  bill  more  acceptable." 

On  the  same  day  this  bill  was  put  to  vote,  and  passed  the 
House.  Yeas,  109  ;  nays,  55  ;  not  voting,  26.  Cong.  Globe, 
2d  Sess.  39th  Cong.  p.  1215. 

It  is  of  course  by  no  means  certain  that  any  action  of 
the  House  of  Representatives  was  in  accord  with  the 
views  of  the  majority  of  the  Committee  on  Reconstruction,^ 

the  constitutional  amendment,  proposed  as  Art.  XIV.,  by  the  Thirty- 
Ninth  Congress,  shall  have  become  a  part  of  the  Constitution  of  the  United 
States  by  tlie  ratification  of  three  fourths  of  the  States  now  represented  in 
Congress,  and  when  any  one  of  the  late  so-called  Confederate  States  shall 
have  given  its  assent  to  the  same,  and  conformed  its  constitution  and  laws 
thereto  in  all  respects."  Mr.  Blaine  did  not  at  this  opportunity  oiler  any 
argument  for  excluding  States  which  had  been  counted  in  ratifying  the 
1'iiirteenth  Article.     Ante.,  p.  217,  note. 

1  Cong.  Globe,  p.  1200. 

2  Mr.  Thayer,  one  of  the  members  of  the  House  who  supported  Mr. 
Stevens's  liill  said,  February  8,  "  Nobody,  I  suppose,  regards  this  bill  as  a 
Reconstruction  Bill."  Mr.  Stevens,  February  18,  said,  "  I  may  say  that  this 
bill  came  from  the  same  committee  after  a  careful  examination,  with  the 
unanimous  consent  of  every  mcml^er  of  the  committee  belonging  to  this 
side  of  the  House,  except  one.  It  came  here  with  a  perfect  understanding 
that,  if  it  was  to  pass  and  become  a  law,  it  must  pass  without  amendment. 
It  was  not  intended  as  a  Reconstruction  Bill.     It  was  intended  simply  as  a 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  231 

The  Bill  as  chant?ed  in  the  Senate. 

merely  because  following  their  report  in  the  order  of  time, 
and  much  less  certain  that  it  was  intended  to  express 
political  views  identified  with  the  opinions  of  any  individ- 
ual member  of  that  committee.  Still,  from  the  history  of 
this  bill  of  Mr.  Stevens,  as  passed  b}'^  the  House  on  Feb. 
13,  1867,  without  amendment,  it  is  a  natural  inference 
that  the  majority  of  the  House  had  accepted  either  the 
doctrine  of  conquest  or  that  of  State-suicide. 

On  the  other  hand,  I  do  not  know  of  any  public  docu- 
ment connected  with  the  action  of  the  Government  in 
reconstruction,  as  was  this  report  with  the  bill  so  passed 
in  the  House,  wliich  can  be  referred  to  as  showing  that 
that  action  was  based  by  Congress  upon  the  theory  of  a 
power  and  duty  arising  from  the  guaranty  by  the  United 
States,  to  each  State,  of  a  republican  government.^ 

On  the  15th,  Mr.  Johnson,  of  Maryland,-  though  not 
proposing  to  vote  for  the  bill,  moved  in  the  Senate  to 
amend  the  House  bill  by  adding  a  section  containing  the 
Reconstruction  amendment  of  Messrs.  Bingham  and  Blaine. 
On  the  16th,  Mr.  Sherman,  of  Ohio,^  moved  a  substitute 
for  the  House  bill,  which  consisted  of  the  bill  originally 
reported  in  the  Senate  by  Mr.  Williams,'^  February  4,  and 

police  bill  to  protect  loyal  men  from  anarchy  and  murder."  Cong.  Globe, 
p.  1214.  As  tills  part  of  the  Act  seems  to  have  been  the  only  legislation 
proposed  from  the  committee  which  attained  the  force  of  statute  law,  it 
might  be  questioned  whether  the  name  Committee  on  Reconstruction  which  it 
had  acquired,  did  not  prove  somewhat  of  a  misnomer;  unless  the  provision 
suggested  by  the  "  one  "  member  goes  to  its  credit,  though  the  committee 
had  refused  to  give  it  their  reconniiendation. 

'  Among  a  variety  of  bills  introduced  by  their  titles  were  two  bills,  each 
entitled,  "A  Bill  to  Guarantee  a  Republican  Government,"  &c.,  introduced 
into  the  House  at  the  second  session  of  the  Thirty-ninth  Congress  (Cong. 
Globe,  pp.  44,  319),  but  no  further  proceedings  were  had. 

2  Mr.  Reverdy  Johnson,  who  has  been  of  the  committee  on  Reconstruc- 
tion, and  one  of  the  signers  of  the  minority  report. 

3  Afterwards  Secretary  of  the  Treasury. 

*  Ante,  p.  224,  note.  Senator  Sherman,  in  moving  his  substitute,  said, 
"  The  first  four  sections  of  this  substitute  contain  nothing  but  what  is  in  the 
present  law.     There  is  not  a  single  thing  in  the  first  four  sections  that  does 


232  THE  EECONSTRUCTION  LEGISLATION. 

The  Bill  as  finally  passed. 

which  Mr.  Stevens  had  reported  with  modifications  in  the 
House  on  the  Gth,  with  the  addition  of  Mr.  Bingham's 
original  amendment.  Wilson's  Hist,  of  Reconstruction, 
p.  364. 

In  this  form  tlie  bill  passed  the  Senate,  February  16. 
Yeas,  29  ;  nays,  10.     Cong.  Globe,  pp.  1360,  1379,  1459, 

Being  returned  to  the  House  in  this  form,  the  House 
refused  to  concur.  Yeas,  73  ;  nays,  98  ;  not  voting,  19. 
Cong.  Globe,  p.  1340. 

February  20,  the  Senate  insisted  on  their  amendment. 

The  bill  being  again  before  the  House,  an  amendment, 
proposed  by  Mr.  Wilson  of  Iowa,  as  to  non-eligibility,  for 
conventions  for  framing  the  new  constitutions,  of  persons 
excluded  from  holding  office  under  the  United  States  by 
the  proposed  constitutional  amendment  Avas  adopted,  and 
also  another,  moved  by  Mr.  Shellabarger,  of  Ohio,  that  the 
same  disqualification  should  rule  in  framing  any  provis- 
ional government.  In  this  form  the  Senate  bill  passed 
the  House,  Feb.  20,  1867.  Yeas,  126  ;  nays,  46  ;  not  vot- 
ing, 18.     Cong.  Globe,  p.  1401. 

The  bill  again  passed  in  the  Senate,  and  afterwards  be- 
came a  law  by  a  two-thirds  vote  of  both  Houses,  after 
having  been  returned  unsigned  by  President  Johnson.'^ 

Considering  the  want  of  harmony  in  the  ordinary 
statements  of  the  political  character  of  the  event  made  by 
official  representatives  of  the  Government,  of  which  a  very 
imperfect  illustration  has  been  given  by  the  citations  in 
former  chapters,  it  is  probable  that  there  will  always  be 
much  difference  of  opinion  as  to  the  character  of  the 
action  of  Congress  bearing  on  the  status  of  these  States, 
and  consequently,  for  some  time  to  come,  a  difference  of 

not  now  exist  hy  law.  ...  In  regard  to  the  fifth  section,  wliich  is  the  main 
and  material  feature  of  the  bill."     Wilson's  Hist.  Kec,  p.  3G5. 

1  The  most  important  clauses  of  Sects.  6  and  6  have  already  been  given, 
ante,  pp.  40,  41. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  233 

An  Historical  Parallel. 

opinion  as  to  what  should  be  the  position  of  any  State,  un- 
der like  circumstances,  in  the  future. 

The  conflict  of  political  doctrine,  co-existing  witli  unity 
in  political  action,  which  stands  recorded  in  the  history  of 
this  enactment,  suggests  a  practical  comment,  which  I 
introduce  by  citing  the  criticism  of  Macaulay  on  a  docu- 
ment, famous  in  English  history,  to  which,  I  think,  this 
legislation  offers  something  like  a  parallel  instance. 

The  historian  is  relating  the  crisis  which  occurred  on 
the  28th  of  January,  1688,  when  the  English  House  of 
Commons,  in  committee  of  the  whole,  found  itself  com- 
pelled to  decide,  by  some  course  of  action,  whether  it 
would  or  would  not  recognize  James  the  Second  as  the 
king  of  England,  and  its  decision  was  expressed  by  the 
resolution  declaring  the  throne  vacant. 

Of  this  resolution,  Macaulay  says,  in  the  tenth  chapter 
of  his  History  of  England  :  — 

"  The  minority  sullenly  submitted,  and  suffered  the  predominant 
party  to  take  its  own  course. 

"  What  that  course  would  be  was  not  perfectly  clear.  For  the 
majority  was  made  up  of  two  classes.  One  class  consisted  of  eager 
and  vehement  Whigs  who,  if  they  had  been  able  to  take  their  own 
course,  would  have  given  to  the  proceedings  of  the  Convention  a 
decidedly  revolutionary  character.  The  other  class  admitted  that  a 
revolution  was  necessary,  but  regarded  it  as  a  necessary  evil,  and 
were  desirous  to  disguise  it,  as  much  as  possible,  under  the  show  of 
legitimacy.  The  former  class  wished  for  a  distinct  recognition  of 
the  right  of  subjects  to  dethrone  bad  princes.  The  latter  class 
wished  •to  rid  the  country  of  one  bad  prince  without  promulgating 
any  doctrine  which  might  be  abused  for  the  purpose  of  weakening 
the  just  and  salutary  authority  of  future  monarchs.  The  former 
class  dwelt  chiefly  on  the  king's  misgovernment ;  the  latter  on  his 
flight.  The  former  class  considered  him  as  having  forfeited  his 
crown  ;  the  latter  as  having  resigned  it. 

"  It  was  not  easy  to  draw  up  any  form  of  words  which  would 
please  all  whose  assent  it  was  important  to  obtain  ;  but  at  length, 


234  TfTE   RECONSTRUCTION   LEGISLATION. 

An  Historical  Parallel. 

out  of  many  suggestious  offered  from  different  quarters,  a  resolu- 
tion was  framed  which  gave  general  satisfaction.  It  was  moved 
that  King  James  the  Second,  having  endeavored  to  subvert  the 
constitution  of  the  kingdom  by  breaking  the  original  contract  be- 
tween king  and  people,  and,  by  the  advice  of  Jesuits  and  other 
wicked  persons,  having  violated  the  fundamental  laws,  and  having 
withdrawn  himself  out  of  the  kingdom,  had  abdicated  the  govern- 
ment, and  that  the  throne  had  thereby  become  vacant. 

"  This  resolution  has  been  many  times  subjected  to  criticism  as 
minute  and  severe  as  was  ever  applied  to  any  sentence  written 
by  man  ;  and  perhaps  there  never  was  a  sentence  written  by  man 
which  would  bear  such  criticism  less.  ...  It  is  idle,  however,  to 
examine  these  memorable  words  as  we  should  examine  a  chapter 
of  Aristotle  or  of  Hobbes.  Such  words  are  to  be  considered,  not 
as  words,  but  as  deeds.  If  they  effect  that  which  they  are  intended 
to  effect,  they  are  rational,  though  they  may  be  contradictory.  If 
they  fail  of  attaining  their  end,  they  are  absurd,  though  they  carry 
demonstration  with  them.  Logic  admits  of  no  compromise.  The 
essence  of  politics  is  compromise.  It  is  therefore  not  strange  that 
some  of  the  most  important  and  most  useful  political  instruments 
in  the  world  should  be  among  the  most  illogical  compositions  that 
ever  were  penned.  The  object  of  Somers,  of  Maynard,  and  of  the 
other  eminent  men  who  shaped  this  celebrated  motion  was,  not  to 
leave  to  posterity  a  model  of  definition  and  partition,  but  to  make 
the  restor;ttion  of  a  tyrant  impossible,  and  to  place  on  the  throne  a 
sovereign  under  whom  law  and  liberty  might  be  secure.  This 
object  they  attained  by  using  language  which,  in  a  philosophical 
treatise,  would  justly  be  reprehended  as  inexact  and  confused. 
They  cared  little  whether  their  major  agreed  with  their  conclusion 
if  the  major  secured  two  hundred  votes,  and  the  conclusion  two 
hundred  more.  In  fact  the  one  beauty  of  the  resolution  is  its  in- 
consistency. There  was  a  phrase  for  every  subdivision  of  the 
majority.  .  .  .  To  the  real  statesman  the  single  important  clause 
was  that  which  declared  the  throne  vacant ;  and  if  that  clause 
could  be  carried,  he  cared  little  by  what  preamble  it  might  be 
introduced.  The  force  which  was  thus  united  made  resistance 
hopeless.  The  motion  was  adopted  by  the  committee  without  a 
division." 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  235 

The  Practical  Comment. 

Tlie  comment  wliich  this  citation  from  Macaulay  was 
intended  to  introduce  is  that,  whatever  opinions  may 
have  influenced  the  action  of  Congress  in  the  so-called 
reconstruction  legislation,  the  ten  States  were  placed  in 
their  "  practical  relations  "  to  the  Government  of  the 
United  States  by  political  measures  which  were  essen- 
tially the  same  as  those  which  occur  in  the  admission  of 
new  States,  created  in  former  Territories.  States  were 
reconstructed  out  of  the  materials  of  land  and  population, 
and  therefore  they  were  not  restored.  The  very  name 
reconstruction,  which  has  been  popularly  adopted  to  express 
the  transaction,!  expresses  its  real  nature,  in  spite  of  the 
disguises  which  had  been  invented  to  conceal  it,  and 
which  seemed  to  be  necessary  because  no  theory  of  our 
national  existence  had  been  given,  adequate  to  receive  the 
new  political  fact  as  agreeing  with  the  original  political 
facts  from  which  the  written  Constitution  derived  its 
authority  as  law. 

From  the  general  tenor  of  these  reconstruction  pro- 
visions, thus  added  to  Mr.  Stevens's  original  bill  for  mili- 
tary governments,  it  might  be  surmised  that,  if  Congress, 
as  a  whole,  can  be  supposed  to  have  entertained  any 
definite  theory  (neither  that  of  conquest,  nor  that  of 
State-lapse)  as  supporting  this  legislation,  it  was  one 
founded  on  the  clause  in  the  fourth  article,  commonly 
called  the  guaranty  clause. 

It  may  further  be  assumed,  for  the  present  at  least,  on 
the  testimony  given  on  this  point  in  the  opinions  of  jus- 

1  It  may,  perhaps,  hereafter  be  taken  not  to  apply  merely  to  the  rehabili- 
tation of  tlie  eleven  States  of  the  Confederacy,  but  to  an  entire  change  in  the 
relations  of  all  the  States  or  a  general  reorganization  of  our  political  life. 
This  appears  to  have  been  the  sense  in  which  it  was  first  employed  in  our 
politics :  as  in  some  of  the  resolutions  offered  in  the  Senate  in  1861  (see  Mac- 
pherson's  Pol.  Hist.  64,  65),  and  in  various  pubhc  declarations  made  soon 
after,  in  the  name  of  the  Southern  States.     lb.  329,  331. 


236  THE   EECONSTEUCTION   LEGISLATION. 

Legislation  as  founded  on  the  Guaranty  Clause. 

tices  of  the  Supreme  Court  which  have  herein  been  cited,i 
that,  in  undertakmg  to  fulfil  a  duty  or  use  a  power  under 
this  clause,  Congress  presupposed  that,  as  a  political  fact, 
these  States,  being  States  of  the  Union,  were  at  this  time 
destitute  of  republican  governments,  either,  — 

1,  Because  they  had  no  State  governments  at  all ;  or, 

2,  Because,  having  State  governments,  they  were  gov- 
ernments which  were  not  republican  in  form. 

This  being  understood  as  the  general  doctrine  relied  on 
by  Congress,  it  may  properly  be  inquired  — 

Upon  what  reasoning  may  either  of  these  positions  be 
sustained  ? 

The  question  is  not,  On  what  reasoning  did  the  sev- 
eral members  of  Congress  who  held  either  of  these  posi- 
tions rest  their  convictions  ?  It  cannot  be  assumed  that 
their  reasoning  was  the  best  possible  reasoning  to  support 
those  convictions.  It  cannot  be  inferred  that  the  argu- 
ments offered  before  Congress  as  a  legislative  body  were 
those  which  influenced  its  action ;  or  that  they  were  held 
by  it,  or  should  be  held  by  any  body,  the  best  of  all  possi- 
ble arguments  for  that  action,  even  though  they  may 
have  been  presented  by  the  persons  who  had  originally 
proposed  such  action. 

For  this  reason,  I  would  not  present  the  remarks  of  any 
particular  member  of  the  House  or  of  the  Senate,  as  those 
on  which  the  whole  argument  from  the  guaranty  clause 
should  be  judged.  As,  however,  Mr.  Bingham  was  the 
mover  of  the  reconstruction  provisions,  and  as  his  argument 
may  be  supposed  to  have  been  that  against  which  most 
opponents  of  that  part  of  the  statute  directed  their  replies, 
it  may  be  taken  as  presumptively  representing  the  prevail- 
ing ideas  of  the  majority  in  regard  to  the  guaranty  clause, 
and  its  applicability  in  this  instance. 

1  Texas  v.  White,  ante,  p.  14 ;  Keith  v.  Clark,  ante,  p.  80. 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  237 

Mr.  Bingham's  Argument. 

On  Feb.  7,  1867,  when  offering  his  first  amendment  to 
Mr.  Stevens's  bill,  Mr.  Bingham  said  :  ^  — 

"  It  is  true,  undoubtedly  true,  that  these  States  remained  disor- 
ganized States  in  the  Union.  It  is  also  undoubtedly  true  that  those 
who  were  the  conquerors  upon  the  field  of  battle  reduced  those  in 
rebellion  to  subjection.^  It  is  also  undoubtedly  true  that  the  govern- 
ment of  the  United  States,  by  its  own  election,  extended  to  those 
insurgents  the  rights  of  belligerents,^  and  it  is  also  true  that  by 
their  rebellion  those  insurgents  failed  to  place  themselves  in  a 
position  to  put  those  States  out  of  the  Union  or  in  the  condition  of 
foreign  territories,  or  beyond  the  jurisdiction  of  the  United  States. 
They  fully  succeeded  by  their  rebellion  in  overturning  their  pre- 
viously existing  State  governments ;  and,  that  being  the  case,  the 
gentleman  will  find  an  answer  to  his  question  in  this,  —  that  it  follows 
from  the  premises  *  that  the  legislative  power  of  the  government  of 
the  United  States  is  exclusive  within  those  States,  and  will  so  con- 
tinue, until  the  people  thereof  reorganize  constitutional  State  gov- 
ernments, and  the  same  shall  be  recognized  by  Congress.  .  .  . 
I  was  proceeding  to  say,  those  insurgent  States,^  having  by  rebellion 

'  Cong.  Globe,  2cl  Sess.  39th  Cong.  1082.  This  portion  of  his  remarka 
was  mainly  in  reply  to  an  inquiry  by  Mr.  Eldridge  of  Wisconsin,  as  to  his 
reconciling  a  military  government  with  the  position  that  tliese  were  "  States 
of  the  Union,  and  not  conquered  territories." 

2  This  is  the  important  sentence,  by  the  method  of  argumentation 
adopted  by  the  speaker.  In  the  ambiguity  of  the  words  here  employed 
those  "  premises  "  are  found  on  which  his  demonstration  rests.  Everything 
depends  on  identifying  the  personalities  recognized  in  "  the  conquerors," 
and  in  those  who  were  "  in  rebellion  "  and  subjected. 

3  "  By  its  own  election,"  —  because  it  could  not  do  otherwise  than  accord 
belligerency  to  somebody  whom  it  was  impossible  to  treat  in  any  other  way 
than  as  a  belligerent,  ante,  p.  199.  This  mention  of  "  insurgents,"  as  dis- 
tinguished from  "  States,"  is  to  be  noticed  in  connection  with  the  mention, 
which  follows,  of  "  insurgent  States  "  in  this  same  argument. 

*  The  speaker  had  not  laid  down  any  premises  at  all,  from  which  any  con- 
clusion whatever  could  follow.  He  had  simply  asserted  that  the  conqueror 
had  put  down  a  rebellion  by  overcoming  those  who  were  insurgents  as  to  him. 
But  this  was  equivalent  to  saying  that  his  legislative  power  had  always 
been  exclusive  ;  and  this  made  the  argument  a  petitio  principii. 

5  The  insurgents,  then,  who  had  just  been  spoken  of  as  having  been  con- 
quered, were,  it  seems.  States.  If  States,  they  must  previously  have  had 
some  jurisdiction  of  their  own,  co-existent  with  that  of  the  general  govern- 
ment.   But  if  the  jurisdiction  of  the  latter  had  now  become  exclusive,  the 


238  THE  RECONSTRUCTION  LEGISLATION. 

Mr.  Bingham's  Argument. 

destroyed  and  disorganized  their  State  governments,  ceased  to  be 
represented,  or  to  be  entitled  to  be  represented,  from  that  day  in 
the  Congress  of  the  United  States.''  .  .  . 

"  The  whole  nation  has  settled  ^  the  question  of  the  powers  of 
Congress  to  legislate  over  those  insurgent  States,  without  their 
consent  and  against  their  consent.  It  must  be  so,  or  it  follows 
that  all  the  laws  you  have  enacted  during  the  last  five  years,  affect- 
ing those  people,  are  unconstitutional  and  void.^  This  exclusive 
power  being  in  Congress  to  legislate  over  the  people  of  those  dis- 
organized States  for  the  protection  of  persons  and  property,  it 
follows  that  their  temporary  organizations  ai*e  subject  to  such 
limitations  and  prohibitions  as,  by  law.  Congress  may  impose. 
This  being  so,  this  bill  in  its  general  provisions  touching  those 
State  governments  is  justified  if,  in  the  judgment  of  Congress,  the 

government  must  have  conquered  those  States,  —  which  was  Mr.  Stevens's 
proposition. 

1  If  this  statement  was  true  it  must  have  been  true  either  as  matter  of 
law  or  as  matter  of  fact.  But  the  case  was  not  like  that  of  a  corporation 
created  by  municipal  law,  which  may  be  destroyed,  as  matter  of  law,  by 
the  illegal  acts  of  the  corporators.  A  State  government  could  exist  only  by 
the  will  of  tlie  political  people  of  a  State,  being  one  of  the  United  States.  The 
idea  that  the  States  held  their  powers  under  the  Constitution  of  the  United 
States  as  law,  grows  out  of  the  fundamental  falsity  of  the  school  of  Story 
and  Webster  (ante,  p.  113),  which  underlies  all  arguments  like  this  of  Mr. 
Bingham.  So  far  as  that  Constitution  was  laio  for  anybody,  it  was  so 
because  it  expressed  the  will  of  the  States,  being  united  ;  as  is  proved  by 
history.  {Ante,  ch.  iv.)  As  to  the  matter  of  fact,  each  of  these  State  gov- 
ernments had  been  and  was  at  that  moment  sustained  by  the  political  people 
of  one  of  these  States,  and  therefore  they  were  not,  as  matter  of  fact,  over- 
turned by  those  States. 

^  This  was  in  reply  to  a  question  by  Mr.  Wright,  of  New  Jersey,  "  I 
would  like  to  ask  the  gentleman  if,  in  his  opinion,  the  party  to  which  he 
belongs  has  conformed  to  the  Constitution  ? "  The  reply  indicates  the 
entrance  of  an  entirely  new  element  in  all  the  questions  before  Congress, 
then  and  afterwards  ;  that  is,  that  some  new  manifestation  of  the  will  of  the 
sovereign,  transcending  the  written  constitution,  had  intervened  ;  that  a 
national  will  then  demanded  recognition  above  that  written  law  which  had 
been  supposed  to  have  been  vindicated  :  in  other  words,  that  something 
revolutionary  had  occurred. 

3  This  might  very  well  be  disputed  by  those  who  had  based  those  laws 
on  a  "war-power"  derived  from  the  "law  of  nations."  (Ante,  p.  174.) 
Besides,  this  is  reversing  the  logical  and  legal  order.  The  validity  of  the 
legislation  depends  on  the  political  facts.  Here,  the  argument  makes  the 
political  facts  depend  on  the  validity  of  the  legislation. 


THEORY   OF   OUE,   NATIONAL  EXISTENCE.  239 

Mr.  Bingham  and  Mr.  Boutwell. 

nece.ssity  for  it  exists.  The  power  asserted  by  this  bill  is  in  per- 
fect harmony  with  all  the  legislation  of  this  government  since  the 
breaking  out  of  the  rebellion  over  those  States.^  It  has  been  set- 
tled by  the  voice  of  the  nation,  as  I  before  stated,  that  those  States 
were  subject,  under  the  limitations  of  the  Constitution,  to  such 
legislation  as  Congress  may  see  fit  to  impose,  and  can  exercise  the 
functions  of  local  self-government  only  by  the  sufferance  of  the 
nation."  ^ 

At  this  point  in  his  remarks,  the  speaker  was  interrupted 
by  another  member  of  the  Reconstruction  Committee, 
whose  view  of  the  position  of  these  States  has  already 
been  noticed.^ 

"  Mr.  Boutwell,  —  Will  the  gentleman  allow  me  to  make  an 
inquiry  ? 

"  Mr.  Bingham.  —  Yes,  sir. 

"  Mr.  Boutwell.  —  I  understand  that  the  gentleman  from  Ohio 
desires,  by  his  amendment  to  the  preamble,  to  declare  that  these 
'  States,'  as  they  once  were  in  the  judgment  of  all,  are  now  States. 
If  he  believes  that  they  are  now  States,  I  ask  him  how  he  can 
reconcile  it  with  his  oath  to  support  the  Constitution,  if  he  does 
not  accord  to  them  all  the  rights  of   States  under  the  Constitution, 

1  All  that  legislation  had  been  founded  on  the  theory  of  an  international 
war,  on  which  Jlr.  Stevens  relied,  and  with  which  Mr.  Bingham's  amend- 
ments were  in  harmony,  if  he  accepted  the  conquest  doctrine. 

2  So  far  as  there  was  a  nation,  it  was  that  in  which  the  United  States, 
i.  e.,  the  States  united,  held  tlie  sovereign  power,  and  which,  when  it  makes 
its  will  known  for  national  purposes,  makes  it  known  through  the  persons 
sent  by  those  States  to  act  as  their  agents  for  national  purposes,  who  were  at 
that  moment  before  the  eyes  of  the  speaker,  —  he  being  one  among  man}'- 
in  council  to  declare  that  will.  None  of  these  agents  had  any  right  to  speak 
for  the  sovereign  in  any  other  way.  But  the  pretension  to  do  this  was  then, 
and  has  since  been  common  enough  in  and  out  of  Congress.  Mr.  Blaine,  on 
moving  his  amendment  to  this  bill  (Feb.  12,  1867,  arUe,  p.  229,  Cong.  Globe, 
2d  Sess.  39th  Cong.  p.  1182),  stated  his  belief  that  "  the  true  interpretation 
of  the  elections  of  1866  was  that,  in  addition  to  the  proposed  constitutional 
amendment,  universal  or  at  least  impartial  suffrage  should  be  the  basis  of 
restoration.  Why  not  declare  it  so  ?  "  he  asked.  On  which  a  little  dispute 
with  Mr.  H.J.  Raymond,  of  New  York,  arose  as  to  the  inference  to  be  drawn 
from  those  elections  as  to  a  measure  which,  in  reality,  involved  the  dete^ 
mination  of  the  ultimate  investiture  of  political  sovereignty. 

3  Ante,  p.  227. 


240  THE  RECONSTRUCTION  LEGISLATION. 

Mr.  Bingham's  Argument. 

and  to  their  citizens  all  the  rights  of  citizens  of  the  United  States 
to  the  same  extent  as  those  rights  are  accorded  to  the  people  of  his 
own  State  ? 

"Mr.  Bingham.  —  I  do  not,  by  the  amendment,  say  that  they 
are  now  States  as  they  once  were.  I  have  said  they  are  States 
disorganized." 

Mr.  Bingham  said  further,  in  eontinuation  of  his  reply 
to  Mr.  Eldridge's  inquiry:  — 

"  I  have  before  replied  to  the  gentleman  that  those  States,  hav- 
ing entered  into  rebellion,  the  unlimited  power  for  the  common 
defence  throughout  their  limits  was  exercisable  by  Congress,  by 
virtue  of  the  very  terms  and  intendment  of  the  Constitution,  and 
this  power  may  be  exercised  by  Congress  until  the  time  when  those 
people  return  to  their  loyalty  and  fealty  in  such  a  manner  as  shall 
satisfy  the  people  of  the  United  States,  duly  organized  and  repre- 
sented in  Congress,^  of  their  fitness  to  be  restored  to  their  full 
constitutional  relations. 

"  If  this  is  not  law,^  then  it  results  that  the  moment  you  break 
the  battalion  of  armed  rebellion  on  the  field  of  open  conflict,  that 
moment  all  the  sovereignty  that  originally  pertained  to  organized 
constitutional  State  governments  ^  immediately  sprung  into  being 

1  There  are  no  "  terms  "  in  the  Constitution,  as  a  written  law,  to  settle 
anything  about  this  matter.  An  "  intendment "  must  be  predicated  of  some 
actual  person,  who,  in  this  instance,  could  be  no  other  than  the  States  which 
then  were  the  United  States.  The  speaker's  argument  rested  on  the  contra- 
diction that  some  of  these  very  States  —  from  which,  if  they  were  States,  the 
written  Constitution  derived  its  authority  —  could  be  excluded  from  rep- 
resentation by  that  Constitution  as  law.  If  the  due  organization  and  repre- 
sentation in  Congress  of  the  people  of  the  United  States  are  not,  as  matter  of 
political  fact,  a  consequence  of  their  prc-existence  as  States  united,  there  is 
no  such  thing  as  a  people  of  the  United  States.  Underlying  all  arguments 
such  as  the  above  is  the  idea  of  the  people  by  hypothesis,  tlie  hypothetical 
nation,  as  generated  in  the  school  of  Story  and  Webster.     {Ante,  p.  114.) 

2  It  is  not  law,  because  there  is  no  law  to  determine  the  question.  If  it 
were  question  of  law,  the  strength  of  the  argument  would  have  been  with 
those  who  resisted  all  tliis  legislation.  Because,  even  if  the  Constitution 
liad  been  law  acting  on  the  States  as  its  subjects,  which  it  was  not,  there 
was  nothing  in  the  written  Constitution  denying  the  right  of  a  State  of  the 
United  States  to  be  represented  in  Congress  for  any  reason. 

8  Whatever  sovereignty  there  was  had  pertained  to  the  political  people 


THEOKY   OF   OUR   NATIONAL   EXISTENCE.  241 

Mr.  Bingham's  Argument. 

without  the  jaower  of  challenge  on  the  part  of  the  nation.  I  deny- 
that  such  is  the  fact.^  It  remains  for  those  who  have  been  in 
rebellion,  after  they  have  surrendered  upon  the  field  of  conflict,  to 
exercise  their  right  of  petition,  being  citizens  of  the  United  States, 
peaceably  and  quietly  under  the  general  operation  of  the  Constitu- 
tion, the  general  jurisdiction  of  which  still  extends  over  them,  and 
to  present  to  the  Congress  of  the  United  States  a  constitutional  form 
of  government,  republican,  as  required  by  the  Constitution,^  and  in 
all  respects  conformable  to  the  laws  of  the  United  States,  and 
thereby  give  some  evidence  of  their  disposition  and  fitness  to  return 
to  that  allegiance  which  they  attempted  to  throw  off  by  their  trea- 
son and  which  they  always  owe  to  that  government,  and  to  be 
restored  to  the  powers  of  organized  States  of  the  Union  which  had 
protected  them  and  theirs.^  When  that  day  comes  the  government 
by  the  sword  ought  to  and  must  cease  and  determine,  and  the  exclu- 
sive jurisdiction  of  the  United  States  to  govern  therein  must  then 
also  cease." 

of  the  State,  and  not  to  their  agent,  the  State  government,  and  the  political 
people  had  never  been  organized  in  reference  to  the  Constitution  of  the 
United  States,  as  a  law  of  their  organization.  No  sovereignty  had  ever  been 
held  under  tlie  Constitution ;  if  it  had,  it  would  not  have  been  sovereignty. 
The  speaker  had  never  attempted  to  show  how  the  political  people  of  the 
State  had  lost  sovereignty. 

1  But  wiiy  did  not  the  speaker  say,  I  deny  that  this  is  the  law  ?  He  had 
put  it,  at  this  instant,  as  a  question  of  law.     I,  too,  deny  that  such  was  the 

fact.  But  the  weakness  with  the  arguments  on  all  sides  on  this  question 
was  that  all  who  participated  in  the  debate  argued  it  from  the  lawyer's  point 
of  view.  {Ante,  p.  109.)  This  applies  even  to  those  who  advocated  the  con- 
quest and  State-suicide  theories. 

2  In  this  sentence  an  entirely  different  view  of  the  guaranty  clause  comes 
to  the  front,  —  the  idea  that  the  Constitution  imposes  a  duty  on  citizens,  as 
individual  persons,  to  want  to  have  a  republican  government.  This  was 
more  prominent  with  other  speakers  on  this  question. 

^  It  is  not  clear  who  the  persons  referred  to  are,  who  are  to  be  governed 
by  the  sword  until  they  do  something, —  whether  they  are  individual  natural 
persons,  assumed,  on  the  fact  of  their  residence,  to  have  been  individually 
guilty  of  treason,  or  States.  No  natural  person  had  hitherto  been  bound 
by  law  to  petition  for  anything,  under  penalty  of  being  governed  by  martial 
law  for  not  petitioning.  The  States  of  the  United  States  never  owed  alle- 
giance to  any  body ;  least  of  all  to  persons  constituting,  as  their  agents,  a 
government  which  rested  on  their  continuing  wills  sustaining  the  written 
Constitution  as  law.  Like  all  sovereigns,  the  United  States  protected  them- 
selves, this  government  being  only  one  of  their  instrumentalities  for  that 
purpose. 


242  THE  RECONSTRUCTION   LEGISLATION. 

Mr.  Bingham's  Argument. 

Mr.  Bingham  said  further  :  — 

"  I  desire  to  put  this  amendment  into  the  preamble  for  the 
further  reason  that  I  wish  thereby  to  notify  in  the  most  solemn 
form  the  men  who  constitute  perhaps  the  majority  of  the  people  in 
those  ten  lately  insurgent  States,  and  who  themselves  were  in  open 
armed  rebellion,  that  what  they  have  to  do  and  all  they  have  to  do 
in  order  to  get  rid  of  military  rule  and  military  government  is  to 
present  to  the  Congress  of  the  United  States  a  constitutional  form 
of  State  government  ^  in  accordance  with  the  letter  and  spirit  of  the 
Constitution  and  laws  of  the  United  States,  together  with  a  ratifi- 
cation of  the  pending  constitutional  amendment.^  That  being  done, 
sir,  this  military  rule  ceases  and  determines.  I  am  sure  of  this,  — 
that  the  American  people  will  have  rule,  civil  or  military,  in  those 
insurgent  States  until  they  shall  be  fully  restored  to  their  constitu- 
tional relations.^  And  so  far  as  they  [j.  e.,  the  American  people] 
may  be  able,  under  direction  of  law  and  the  authority  of  law  enacted 
by  their  Congress,*  they  will  protect  all  men  in  those  States  in  life, 
liberty,  and  property,  until  they  can  be  fully  protected  under  an 
accepted  constitutional  State  government.  When  men  in  those 
States  shall  have  fulfilled  their  obligations,  and  when  the  great 
people  themselves  shall  have  put  by  their  own  rightful  authority  ® 

1  "  The  constitutional  form  of  State  government  "  in  these  ten  States 
was  neither  more  nor  less  "in  accordance  with  tlie  letter  and  spirit  of  the 
Constitution  "  of  the  United  States  than  it  had  been  before  the  war ;  and 
"  the  laws  "  of  the  United  States  —  that  is,  the  Acts  of  Congress  —  were  to  be 
judged  by  that  Constitution  as  much  as  were  the  laws  of  any  State. 

2  Mr.  Blaine,  by  his  amendment  {ante,  p.  229,  note),  had  squarely  asserted 
that  tlie  pending  amendment  would  be  ratified  by  three  fourtlis  of  the 
whole  number  of  States,  excluding  these  ten  States.  On  this  basis  these 
States  would  have  accepted  the  amendment  as  Territories  accept  the  exist- 
ing Constitution.  Mr.  Bingham's  plan  contemplated  amendments,  to  bind 
all  indiscriminately,  being  adopted  by  congressional  coercion  of  some  States 
included  in  the  three  fourths. 

3  In  this  sentence  the  States,  as  political  personalities,  are  the  parties  to 
be  deivlt  with.  In  the  preceding  sentence  it  was  "  the  men  who,"  &c.,  who 
were  to  exercise  their  right  of  petition.  The  States  had  not  heretofore  been 
imagined  in  the  attitude  of  petitioners. 

*  Here  "  the  American  people,"  whose  will  in  this  matter  is  assumed  to 
be  supreme,  are,  at  the  same  time,  supposed  to  be  under  the  direction  of 
laws  enacted  by  their  own  Congress;  that  is,  their  own  agents. 

^  It  would  appear  that  "  the  great  people "  "  by  their  own  rightful 
authority  "  had  yet  to  carry  out  "the  nation's  will";   so  that  "the  great 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  243 

Another  Ajjplicatiun  of  the  Guaranty  Clause. 

into  the  fundamental  law,  the  sublime  decree,  the  nation's  will,  that 
no  State  shall  deny  to  any  mortal  man  the  equal  protection  of  the 
laws  .  .  .  then,  sir,  by  assenting  thereto,  those  States  may  be  re- 
stored at  once."  ^ 

As  has  already  been  noticed,  it  cannot  be  known  whether 
arguments  like  these  of  the  mover  of  these  provisions 
of  the  Act  were  those  upon  which  the  requisite  majority  of 
both  Houses  was  secured;  and  it  is  shown  by  the  recorded 
debates  that  there  were  other  speakers  who  rested  the 
power  of  Congress  on  an  interpretation  of  the  guaranty 
clause,  or  of  something  of  the  sort,  which  did  not  require 
any  begging  of  the  question  through  terms  of  doubtful 
meaning. 

The  reconstruction  clauses  of  the  Act  of  March  2, 1867, 
do  not  indeed  affirm  that,  in  proposing  to  these  ten  States 
a  certain  electoral  basis  for  their  future  constitutions, 
Congress  acted  in  execution  of  a  general  power  to  require 
each  State,  being  one  of  the  United  States,  to  have  any 
basis  which  it  may  judge  indispensable  to  a  republican 
form  of  government. 

It  could  therefore  be  only  from  remarks  made  at  the 
time  by  its  advocates  in  Congress  that  any  inference  could 
be  drawn  that  this  act  of  legislation  was  founded  on  such 
a  construction  of  the  guaranty  clause. 

Even  in  Mr.  Bingham's  remarks  in  the  debate  on  his  pro- 
posal to  insert  these  clauses,  there  were  passages  indicat- 
insT  a  leaningc  to  this  view :  such  as  that  in  which  the 
phrase  occurs,   "  present  to  the   Congress  of  the   United 

people"  and  "  the  nation"  are  distinguishable,  and  apparently  these  States 
were  part  of  this  great  people  who  had  "  a  rightful  authority  "  to  be  exer- 
cised in  adopting  amendments  under  the  alternative  of  military  rule  ! 

1  In  these  concluding  passages  the  speaker  was  in  harmony  with  Mr. 
Stevens,  whose  plirase,  "  so-called  States,"  he  had  denounced.  For  Mr. 
Stevens  did  not  claim  a  right  to  govern  by  military  rule,  at  this  time,  upon 
conquest,  as  result  of  the  war,  but  on  tlie  conduct  of  the  white  population 
towards  the  freedmen  and  their  refusal  to  vote  to  adopt  the  Fourteenth 
Amendment;  which  is  also  Mr.  Bingham's  position  in  these  remarks. 


244  THE  EECOXSTEUCTION  LEGISLATION. 

Other  Remarks  by  Mr.  Bingham. 

States  a  constitutional  government,  republican  in  form,  as 
required  by  the  Constitution."  ^ 

From  the  course  adopted  by  Mr.  Stevens  in  reference 
to  all  amendments  to  the  bill  introduced  by  himself,  there 
was  little  opportunity  given  to  debate  in  the  House  on 
these  reconstruction  provisions  until  they  had  been  incor- 
porated in  the  amended  bill  as  returned  from  the  Senate, 
when  the  near  end  of  the  session  excluded  the  oj)portunity 
for  extended  discussion. 

At  that  point,  however,  in  its  history,  Feb.  18,  1867, 
Mr.  Bingham  remarked  of  the  whole  bill  as  it  was  then 
framed  :  — 

*'  "We  further  say  to  the  people  of  those  States,  '  If  you  wish  to 
exercise  the  right  of  local  self-government,  do  equal  and  exact 
justice,  remodel  your  Constitution,  adopt  that  constitutional  amend- 
ment which  to-day  has  the  sanction  of  twenty-five  millions  of  free- 
men in  this  land,"  and  you  will  be  restored  to  your  equal  place  and 
to  all  your  political  powers  in  the  Union  as  States.  Until  you  do 
this  you  shall  be  subject  to  such  form  of  government  as  will  best 
secure  all  men,  without  respect  to  race,  color,  or  previous  condition, 
their  persons  and  property."     Cong.  Globe,  p.  1319. 

In  the  Senate,  during  the  debates  on  this  bill,  very  lit- 
tle allusion  was  made  to  the  guaranty  clause  as  the  foun- 
dation of  the  power  claimed.  The  supporters  of  these 
provisions  of  the  Act,  as  well  as  those  who  approved  tlie 

'  And,  in  reply  to  a  question,  Cong.  Globe,  p.  1083  :  "  If  we  are  not  satisfied 
tliat  these  organizations  are  republican  and  just  and  equal  and  constitu- 
tional, we  may  require  them  to  go  further  and  to  do  something  else." 

2  So  far  as  the  speaker  could  be  informed,  all  he  could  say  was  tliat  the 
amendments  had  the  sanction  of  a  certain  number  of  States  in  their  cor- 
porate capacity.  If  he  proposed  to  rest  their  validity  on  the  numerical 
majority  of  the  inhabitants  of  the  country,  of  whom  no  estimate  had  been 
taken,  he  hail  no  right  to  count  the  minorities  in  each  of  these  States  as 
supi)orting  the  amendment.  It  is  highly  probable  that,  estimating  for  a 
majority  of  the  nation  as  a  mass  of  individuals,  it  was  against  the  amend- 
ment. See  remarks  of  Mr.  Finck,  of  Ohio,  on  the  same  occasion.  Cong. 
Globe,  p.  1333. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  245 


Debates  on  the  Louisiana  Bill. 


sections  for  military  governments,  as  they  stood  in  the 
original  bill,  seemed  to  have  entertained  a  very  simple 
theory  of  absolute  dominion,  whether  founded  on  the 
guaranty  clause,  or  on  a  doctrine  of  conquest,  or  on  one  of 
State-lapse.  This  was  by  some  senators  combined  with 
the  assumption  that  a  new  basis  for  government,  in  all 
the  States,  in  universal  "  manhood  suffrage  "  had,  by 
some  undescribed  popular  decree,  become  a  part  of  the 
public  law ;  or  this  may  be  taken  as  a  new  interpretation 
of  the  term  "  republican  government  "  in  the  guaranty,  as 
made  known  to  them  by  something  akin  to  a  revolution. 

There  were,  however,  several  other  bills  pending  during 
the  two  sessions  of  the  Thirty-ninth  Congress  which  gave 
occasion  to  arguments  founded  on  the  guaranty  clause  ; . 
the  question  of  power  being  the  same  as  that  presented  by 
the  Act  of  March  3,  1867. 

At  the  time  Mr.  Stevens's  bill  was  under  discussion,  a 
bill  relating  to  Louisiana  alone  had  been  proposed,^  which 
passed  in  the  House  only,  being  dropped  in  the  Senate 
and  in  fact  rendered  siiperfluous  by  the  more  general 
application  of  the  other  bill.  It  contained  provisions, 
somewhat  similar  to  those  incorporated  into  the  other  bill, 
for  determining  the  elective  franchise  in  the  State.  For 
this  reason  the  arguments  drawn  from  the  guaranty  clause 
in  justification  of  those  provisions  would  be  of  equal  appli- 
cation to  similar  provisions  in  the  other  bill  and,  if  used 
by  speakers  who  were  prominent  as  supporters  of  the  lat- 
ter, are  of  equal  significance  as  indicating  the  view  taken 
by  the  majority. ^ 

1  Reported  from  the  select  committee  on  the  New  Orleans  riots  by  Mr. 
Eliot,  of  Massachusetts,  Eeb.  11,  1867,  Cong.  Globe,  2d  Sess.  39th  Cong. 
p.  1129;  House  Bill,  1162,  entitled  a  "  Bill  for  the  Re-establishment  of  Civil 
Government  in  the  State  of  Louisiana,"  which  passed  the  House  Feb.  12, 
1867,  — yeas,  113;  nays,  30.  Cong.  Globe,  p.  1175;  Wilson's  Hist.  Rec. 
pp.  329,  333.  The  substance  of  the  various  sections  of  the  bill  was  given 
by  Mr.  Shcllabarger  in  his  remarks  of  Feb.  12,  18G7.     Cong.  Globe,  p.  1173. 

2  Feb.  14,  1867,  referring  to  House  Bill  No.  1143,  the  Louisiana  Bill  then 


246  THE   RECONSTRUCTION   LEGISLATION. 

Senator  Wilson's  Position  as  to  "Manhood  Suffrage." 

In  the  debate,  Feb.  15,  1867,  in  the  Senate  on  the 
amendment  to  House  Bill  No.  1143,  Mr.  Wilson,  of  Mas- 
sachusetts, said  :  — 

"I  believe,  Mr.  President,  that  the  wisest  thing  would  be  to 
pass  this  bill  just  as  it  came  from  the  House,  and  then  to  pass  the 
Louisiana  Bill,  and  then  to  pass  a  resolution  reciting  the  fact  that 
the  constitutional  amendment  has  been  adopted  by  a  sufficient 
number  of  States,  and  providing  that  those  States  in  rebellion 
which  will  assent  to  the  constitutional  amendment,  change  their 
constitutions  and  laws  in  conformity  with  its  requirements,  give 
manhood  suffrage,  and  put  all  its  citizens,  without  distinction  of 
color  or  race,  under  the  equal  protection  of  the  laws,  so  that  they 
may  engage  in  all  the  avocations  of  life,  have  the  benefits  of  the 
public  schools,  and  stand  on  the  same  ground  with  all  others,  pro- 
tected by  just,  humane,  and  equal  laws,  shall  be  thereupon  entitled 
to  representation  in  Congress  by  those  who  can  take  the  prescribed 
oath.  .  .  . 

"  Sir,  universal  manhood  suffrage  has  ceased  to  be  a  contested 
issue  in  America.  Although  it  is  not  yet  incorporated  into  consti- 
tutions and  laws,  it  is  just  as  much  an  achieved  fact  in  the  ten 
rebel  States  as  it  is  in  the  District  of  Columbia,  the  State  of  Ten- 
nessee, or  the  Territories.  The  battle  of  manhood  suffrage  is  fought 
and  won  ;  all  we  have  to  do  now  is  to  provide  for  the  formal  incor- 
poration of  that  principle  into  constitutions  and  laws."  ^ 

On  Feb.  12,  1867,  the  Louisiana  Bill  being  then  in 
order,  Mr.  Shellabarger,  a  representative  from  Ohio,  re- 
marked :  — 

being  in  order  in  tlie  Senate,  Mr.  Sumner  said  (Cong.  Globe,  p.  1303) : 
"  I  am  in  favor  of  each  of  these  bills.  Eaoli  is  excellent :  one  is  the  begin- 
ning of  a  true  reconstruction  ;  the  other  is  the  beginning  of  a  true  protec- 
tion. Now,  in  the  rebellious  States,  there  must  be  reconstruction  and  there 
must  be  protection.  Both  must  be  had,  and  neither  must  be  antagonized 
with  the  other.     The  two  should  go  in  side  by  side,"  &c. 

1  Globe,  p.  1365;  Wilson's  Hist.  p.  352.  See  also  remarks  by  Mr.  Allison, 
of  Iowa,  in  tlie  House,  Feb.  12,  1867.  Globe,  p.  1181.  It  woulil  appear  from 
these  remarks  that  there  was  something  or  somebody  superior  to  the  Constitu- 
tion and  laws  tiicy  had  sworn  to  support,  to  whom  senators  and  representa- 
tives had  to  look  before  voting. 


THEORY  OF  OUR   NATIONAL  EXISTENCE.  247 

Citation  of  Luther  v.  Borden,  by  Mr.  Shellabarger. 

"  This  important  bill  is  precisely  what  its  title  indicates,  one 
*  To  provide  a  Civil  Government  for  Louisiana.'  The  bill  assumes, 
as  the  truth  upon  which  it  is  based,  a  proposition  that  was  uttered 
by  him  who  administered  the  government  before  the  present  acting 
President  of  the  United  States  came  into  povver,^  and  which  was 
repeated  by  the  latter,  —  that  these  revolted  States  have  lost  their 
civil  governments.  It  assumes  nothing  beyond  that.  It  does  not 
touch  what  has  been  to  some  extent  the  controverted  question, 
whether  tlieir  condition  is  exactly  analogous  to  Territories  or  not. 
It  simply  attempts  to  restore  to  those  States  civil  governments, 
nothing  more,  nothing  less." 

To  this  extent  the  argument  was  in  harmony  with  that 
of  Mr.  Bingham  on  the  other  bill ;  but  in  the  remarks 
immediately  following,  a  different  view  of  the  action  pro- 
posed is  taken.     Mr.  Shellabarger  proceeded  to  say  :  — 

"  Now  let  me  remind  gentlemen  on  the  other  side,  who  have 
asserted  so  earnestly  that  this  bill  is  unprecedented  in  its  legal 
aspects,  that  they  forget  that  the  Supreme  Court  of  the  United 
States,  in  a  well  considered  case,  and  by  an  opinion  which,  accord- 
ing to  my  present  recollection  was  unanimous,  decided  that  the 
government  of  the  United  States,  in  its  Congress,  has  the  identical 
power  upon  which  this  bill  proceeds,  to  wit,  the  power  to  decide 
whether  the  government  in  a  given  State  is  republican  or  not ;  and 
if  it  be  found  to  be  not  of  that  character,  to  set  it  aside. 

"  That  was  decided  in  the  celebrated  Rhode  Island  case,  so 
perfectly  familiar  to  every  gentleman  of  the  House  who  is  at  all 
versed  in  these  legal  questions.  .  .  .  The  Constitution  itself  speaks 
about  a  State  being  a  State  notwithstanding  it  may  have  lost  its 
republican  government.  ...  He  upbraids  the  bill  because  it  speaks 
of  Louisiana  as  a  State.  So  does  your  Constitution  speak  of  States 
as  things  which  may  be  States  and  yet  not  have  republican  govern- 
ments ;  because  it  assumes  that  it  is  possible  a  State,  in  the  consti- 
tutional sense,  may  be  a  State  and  yet  have  lost  its  constitutional 
government.  Is  not  that  alphabetical  constitutional  law?  .  .  . 
Remember  that  you  are  the  representatives  of  this  mighty  nation, 
that  here  the  voice  of  the  American  people  speaks  in  execution  of 

1  Compare  as  to  Mr.  Lincoln's  view,  ante,  p.  36. 


248  THE  EECONSTEUCTION  LEGISLATION. 

Views  taken  as  to  the  Application  of  the  Guaranty. 

the  provision  of  your  Coustitiition  which  says  that  you  shall  guar- 
antee to  the  States  a  republican  form  of  government.  After  this 
can  any  gentleman  hesitate  to  carry  out  the  obligation  and  to  fulfil 
the  duty  imposed  upon  Congress  that  we  shall  see  to  it  that  these 
States  are  republican?  .  .  .  Now  that  is  the  point  where  this  bill 
and  every  other  bill  proposing  to  reconstruct  the  States  South  must 
rest.  It  rests  on  the  right  and  the  duty  of  this  part  of  the  govern- 
ment to  see  that  there  is  kept  in  each  State  a  republican  govern- 
ment. This  bill  says,  we  will  neither  have  nor  guarantee  the 
government  which  is  there  now  and  which  rests  on  a  disloyal  basis, 
as  far  as  it  has  any  basis  at  all." 

Remarks  of  similar  tenor  were  made  in  this  Congress  at 
different  periods  by  other  speakers.  They  might  seem 
well  enough  suited,  as  arguments,  to  sustain  the  actual 
provisions  of  the  reconstruction  clauses  of  the  Act  of  March 
2,  1867,  and,  taken  together,  might  indicate  that  a  portion 
of  the  majority  in  each  branch  founded  this  legislation  on 
the  assumption  that  the  governments  then  existing  by  the 
will  of  these  States,  as  political  members  of  the  Union, 
were  not  republican  in  form ;  and  that  therefore  these 
States,  though  neither  conquered  States  nor  lapsed  States, 
might,  under  penalty  of  exclusion  from  representation  in 
Congress  and  subjection  to  military  rule,  be  required 
by  the  general  government,  as  a  superior,  to  receive 
a  certain  political  organization  supposed  by  Congress  to 
answer  to  the  term  "  republican  in  form  "  in  the  guaranty 
clause. 

The  greater  number,  however,  of  the  arguments  sup- 
porting this  legislation  in  each  branch  of  Congress  con- 
sisted of  propositions  similar  to  those  in  Mr.  Bingham's 
remarks,  —  that  as  a  consequence  of  rebellion  (that  is, 
either  the  rebellion  of  the  States,  as  such,  or  that  of  their 
inhabitants,  as  citizens  of  the  United  States)  against  the 
general  government  as  a  sovereign,  these  ten  States  had 
"  destroyed  their  own  governments  "  as  matter  of  political 
fact,  and  so  were  deprived  of  lawful  or  legal  government, 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  249 

View  taken  by  the  Supreme  Court. 

and  therefore,  us  matter  of  law,  could  not  be  represented 
in  Congress  ;  and,  though  still  States  of  the  United  States 
from  whose  consent  the  Constitution  derived  its  authority 
as  law  (as  was  shown  by  their  being  reckoned  in  the 
calculation  for  amendments),  were  "disorganized  States," 
and  by  being  so  disorganized  were  subject  to  the  exclusive 
jurisdiction  of  Congress,  whose  duty  it  was  under  the 
guaranty  clause  to  provide  for  them  such  governments  as 
it  might  deem  republican  (by  placing  them,  as  States, 
under  military  control  until  a  new  political  f)eople  should 
be  organized  to  accept,  as  a  State,  certain  conditions  of 
existence,  one  of  which  should  be  the  adoption  of  a  con- 
stitutional amendment  enabling  Congress  to  pass  such  laws 
as  had  previously  been  unconstitutional),  and  so  restore 
them,  as  States,  to  "  their  p)ractical  relations  to  the  general 
government." 

How  far  the  Supreme  Court  may  have  agreed  to  such 
propositions,  it  would  be  difficult  to  judge.  But  from  the 
language  of  the  several  justices  already  cited,  it  may  be 
inferred  at  least  that,  if  the  court  has  accepted  any  action 
of  "  the  political  department "  as  an  execution  of  the  guar- 
anty clause  of  the  Constitution,  it  has  been  on  the  suppo- 
sition that,  as  a  political  fact,  these  States  were  at  the 
time  without  any  State  governments  at  all,  rather  than 
that,  having  State  governments  at  that  time,  they  were  not 
"  republican  in  form." 

This,  however,  cannot  settle  the  propriety  of  that  ac- 
tion, because,  on  the  confession  of  the  court  itself,  the 
validity  of  the  action  of  "  the  political  department "  is  not 
matter  for  judicial  determination. 

It  is,  therefore,  still  open  to  inquire.  How  has  there 
been  any  execution  of  the  guaranty  in  this  instance  by  the 
action  of  "  the  political  department  "  ? 

Whatever  may,  as  a  legal  question,  be  the  proper  inter- 
pretation of  the  clause  in  the  Constitution,  the  only  execu- 


250  THE   RECONSTRUCTION'   LEGISLATION". 

The  Case  of  Rhode  Island,  as  a  Precedent. 

tion  of  tlie  guaranty  which  had  been  judicially  sustained 
before  this  instance  of  State-reconstruction,  consisted,  — 

1st,  In  recognizing  as  already  existent  a  certain  definite 
body  of  electors  in  a  State  as  being  tlie  true  political 
people  of  the  State,  or  as  being  the  State  itself,  in  distinc- 
tion from  another  more  or  less  definite  body  of  persons  claim- 
ing to  be  the  true  body  of  electors,  or,  as  such,  the  real 
State. 

2d,  In  recognizing  such  State  as  claiming  from  Congress 
the  performance  of  a  duty,  i.  e.,  the  execution  of  the 
guaranty  given  by  the  United  States. 

This  was  all  that  had  been  done  on  the  part  of  the 
government  representing  the  United  States  at  the  time  of 
Dorr's  rebellion,  so-called,  in  reference  to  the  State  of 
Rhode  Island.  The  executive  of  the  United  States  had 
recognized  the  body  of  electors  constituted  under  the  old 
charter  of  the  colony,  on  their  corporate  claim,  as  the 
State  which  could  claim  the  guaranty  from  the  United 
States,  in  opposition  to  the  self-constituted  body  also 
claiming  to  be  the  actual  political  people  of  the  State. ^ 

This,  therefore,  was  all  that  was  or  could,  as  judicial  pre- 
cedent^ be  decided  by  the  case  of  Luther  v.  Borden,  to  have 
been  in  accordance  with  the  constitutional  provision. 

In  Luther  v.  Borden,  7  How.  39,  Chief  Justice  Taney 
said :  "  The  courts  have  uniformly  held  that  the  inquiry 
proposed  to  be  made  belonged  to  the  political  power  and 
not  to  the  judicial ;  that  it  rested  with  the  political  power 
to  decide  whether  the  charter  government  had  been  dis- 
placed or  not."  Here,  "government"  is  shown  by  the 
context  to  mean  the  body  of  electors  who,  as  the  political 
people  of  the  State,  hold  the  powers  of  a  State  of  the 
United   States,  —  not   the   form  of  government,  as  law, 

1  This  case,  therefore,  gives  a  definition  of  a  State  of  the  United  States 
which  justifies  its  citation  in  Gi'orgia  v.  Stanton,  ante,  p.  48,  note,  and  wliicli 
is  contradictory  to  Ciiase's  definition,  ante,  p.  9. 


THEORY   OP   OUR   NATIONAL   EXISTENCE.  251 

Wliy  no  Precedent  for  Reconstruction. 

which  they  institute.  The  political  power  —  those  who 
hold  the  political  power  of  the  general  government  — 
decide,  in  the  sense  of  recognize,  who  those  are  who  con- 
stitute the  State  government  in  this  sense.  A  power  to 
constitute  the  political  people  of  the  State  is,  therefore,  not 
recognized  in  this  judicial  precedent.^ 

The  precedent  given  by  the  Rhode  Island  case  did  not 
serve  as  a  guide  to  the  congressional  S3^stem  of  reconstruc- 
tion, because,  by  the  words  of  the  Constitution,  the  guar- 
anty was  to  a  State  ;  that  is,  to  some  political  personality 
as  distinguished  from  any  natural  persons.  The  claim  upon 
the  United  States  which  it  created  was  one  which  can 
belong  only  to  such  a  political  personality,  and  as  such  it 
is  to  be  distinguished  from  any  rights  held  by  natural 
persons  under  law,  which  each  may  individually  forfeit  by 
rebellion,  treason,  or  other  criminal  act. 

Under  the  congressional  system  of  reconstruction,  the 
pre-existence  of  the  political  personality,  that  is,  of  a  polit- 
ical 2)cople  of  each  of  these  States,  capable  as  such  of 
having  a  claim  under  the  guaranty,  was  denied.  For,  if 
there  was  any  such  people  at  that  time,  it  was  that  organ- 
ized political  people  whose  action,  by  a  government  of  their 
own  choosing,  Mr.  Johnson  was  then  sustaining,  as  his  ful- 
filment of  the  same  guaranty,^ — the  same  political  people 
which  Mr.  Lincoln  had  regarded  as  in  existence,  and  which 
had  sustained  the  Secession  Ordinances. 

1  The  caption  of  the  report  is,  "  The  question,  wliich  of  the  two  oppos- 
ing governments  was  tlie  legitimate  one,  viz.,  the  charter  government,  or 
the  government  established  by  the  voluntary  convention,  has  not  heretofore 
been  regarded  as  a  judicial  one  in  any  of  the  State  courts.  The  political 
department  has  always  determined  whether  a  proposed  constitution  or 
amendment  was  ratified  or  not  by  the  people  of  the  State,  and  the  judicial 
power  has  followed  its  decision."  7  How.  1.  The  political  department  here 
referred  to  is,  apparently,  not  a  part  of  the  general  government,  but  of  the 
State  governments.  The  term  "  political  department "  was  not  Judge 
Taney's.     Compare  ante,  p.  20,  note. 

2  See  Memoir  of  B.  R.  Curtis,  i.  pp.  383-387. 


252  THE  KECONSTRUCTION  LEGISLATION. 

The  State  not  found  in  Loyal  Citizens. 

In  this,  however,  Congress  Avas  inconsistent ;  having 
repeated]}^  recognized  the  existence  of  the  same  political 
people  in  these  States,  as  by  accepting  their  action  in 
adopting  the  Thirteenth  Amendment  and  offering  the 
Fourteenth  to  them,  before  this  legislation. 

According  to  one  of  the  ideas  of  executing  the  guaranty- 
in  the  instance  of  these  States,  which  have  had  their  advo- 
cates, the  recipients  of  its  benefit  are  supposed  to  have 
been  certain  natural  persons,  individual  citizens,  either  such 
as  were  assumed  to  have  been  individually  always  loyal ; 
or  such  as  had  not  forfeited^  under  legislative  attainder 
for  treason,  their  personal  claims  upon  the  United  States 
under  the  guaranty  ;  or  such  as,  having  been  disloyal^  and 
having  so  forfeited  their  claim,  were  required  to  give 
proof  of  loyalty  by  accepting  a  prescribed  form  of  govern- 
ment, under  the  alternative  of  continued  military  rule.^ 

It  has,  probably,  been  thought  in  accordance  with  the 
precedent  furnished  by  the  case  of  Rhode  Island,  to  say 
that,  in  the  instance  of  these  States,  it  was  competent  for 
Congress  to  discriminate  a  loyal  jjeople  as  being  the  State^ 
however  few  in  number,  as  compared  with  a  disloyal 
peojyle,  however  numerous.^ 

A  State  of  the  United  States  was  the  bod}'-  corporate 
acting  by  a  majority  of  its  political  people.     The  loyalty 

1  Compare  Mr.  Lincoln's  lanjjuage,  arite,  pp.  35,  36 ;  also  the  statement 
of  his  view  of  the  subject  in  Memoir  of  B.  R.  Curtis,  i.  385-6. 

^  As  in  Mr.  Attorney-General  Stanbery's  argument  for  the  defendant,  in 
Georgia  r.  Stanton,  6  Wall.,  so  "  Tiiey  [('.  e.  the  State]  are  precisely  in  the 
situation  pointed  out  by  the  Constitution,  —  a  State  in  insurrection  ;  a  lawful 
State  wnrred  upon  by  an  unlawful,  unauthorized  body  claiming  to  be  a 
State,  using  force  against  force  that  the  rightful  State  cannot  overcome. 
Then  comes  a  case  for  political  interference.  Then  Congress  and  the 
President  must  decide  which  of  the  two  is  the  rightful  State,  and  when  they 
decide  it,  it  is  decided  for  this  court  and  for  all :  that  is  the  only  tribunal 
tliat  can  decide  it."  Tiie  supposition  of  two  States  in  one  pohtical  people, 
a  lawful  people  and  an  unlawful  people  in  one  body,  suggests  tlie  proposi- 
tions offered  to  tlie  court  in  Keitli  v.  Clark,  as  to  tlie  State  of  Tennessee. 
A)ite,  p.  23.     Conii)are  ante,  p.  148. 


THEORY   OF  OUR   NATIONAL  EXISTENCE.  253 

A  Dictum  of  Ch.  J.  Taney. 

or  disloyalty  of  individual  inhabitants  of  a  State  had 
nothing  to  do  with  the  validity  of  any  claim  of  the  cor- 
porate body.  The  claim  of  a  State  as  a  corporate  body 
did  not  depend  upon  any  loyalty  or  disloyalty  on  its  part ; 
because,  up  to  that  time,  there  never  had  been  anybody 
in  existence  to  whom  the  States,  being  States  of  the  United 
States,  were  bound  to  be  loyal.  Even  if,  before  1861,  the 
States  were  bound  to  be  loyal  to  anybody,  it  certainly 
was  not  to  Congress,  not  to  the  persons  who  adminis- 
tered the  general  government,  nor  to  the  written  Consti- 
tution, which  is  a  thing  and  not  a  person.  If  anybody 
was  bound  to  loyalty  to  any  other  person,  he  was  so  bound 
to  somebody  for  whom  the  persons  constituting  the  general 
government  were  only  the  agents,  under  the  written  Con- 
stitution, and  from  whom  that  written  Constitution  derived 
its  force  as  law.  That  person,  as  shown  by  history,  was 
the  States  united,  including  these  ten  States,  if  they  were 
then  States  of  the  Union. 

Though  it  may  thus  appear  that  the  action  of  Congress 
in  this  instance  has  not  been  in  accordance,  as  an  applica- 
tion of  the  guaranty  clause,  with  the  actual  precedent 
furnished  by  the  instance  of  Rhode  Island,  it  may,  perhaps, 
be  regarded  as  the  development  of  a  dictum  by  Chief  Jus- 
tice Taney,  in  the  case  of  Luther  v.  Borden,^  as  meaning  to 
say  that  the  discrimination  of  the  persons  constituting  the 
political  people  of  the  State,  as  made  in  that    instance, 

1  7  How.  42.  "  Under  this  article  it  rests  with  Congress  to  decide  wiiat 
government  is  the  establislied  one  in  a  State.  For  as  the  United  States  guar- 
antee a  republican  form  of  government,  Congress  must  necessarily  decide 
wliat  government  is  established  in  a  State  before  it  can  decide  whether  it  is 
republican  or  not."  In  the  instance  of  Rhode  Island,  neither  did  the  Executive 
nor  did  Congress  undertake  to  sit  in  judgment  on  the  nature  of  the  government 
established  by  the  political  people  of  the  State.  So  far  as  that  transaction 
indicated  the  construction  of  the  clause,  it  was  that  the  government  fulfils 
tl'.e  guaranty  of  a  "  republican  form  of  government "  to  a  State  when  it 
recognizes  and  sustains  an  existing  political  people  as  being  the  State;  and 
therefore  the  judicial  dictum  was  in  contradiction  to  the  political  precedent. 


254  THE   RECONSTRUCTION  LEGISLATION. 

A  new  Construction  of  tlie  Clause. 

was  merel}'  incidental  to  a  duty  devolved  upon  the  general 
government  to  determine  whether  the  State  government, 
that  is,  the  formal  constitution  established  bj^  that  people 
as  law,  was  republican  or  not  in  its  nature  or  quality. 

This  appears  to  have  been  put  forward  by  some  persons 
as  equivalent  to  a  judicial  opinion  that  it  has  always  been 
within  the  competency  of  Congress  to  decide  upon  the 
validity  of  provisions  established  by  the  political  people 
of  each  State  as  their  constitution  of  State  government, 
either,  — 

1.  Because  a  standard  of  what  constitutes  a  republican 
form  of  government  has  been  given  by  some  superior,  to 
which  each  State  has  been  bound  to  conform  ;  or, 

2.  Because  the  term  "  republican  government "  is  here 
equivalent  to  any  form  of  government  which  Congress  may 
at  the  time  deem  republican. 

This  is  giving  an  entirely  new  construction  to  the  clause, 
and  one  which  of  itself  turns  the  whole  political  constitution 
of  the  country  inside  out.^     Heretofore  it  had  been  under- 

1  In  the  debate  in  the  Senate,  Dec.  19,  1866,  on  the  condition  introduced 
in  the  bill  admitting  the  State  of  Nebraska  (14  U.  S.  Stat.  392),  respecting 
"  the  denial  of  the  elective  franchise  or  any  other  right  to  any  person,  by  rea- 
son of  race  or  color,"  «S;c.,  Mr.  Reverdy  Johnson  remarked  that  the  power  to 
impose  such  a  condition  had  been  placed  upon  "  the  guaranty  clause,"  and 
said,  "  If  it  can  be  maintained  under  that  clause,  it  can  only  be  because  a  Con- 
stitution which  denies  to  any  of  the  citizens  the  riglit  to  vote  is  not  republican. 
That  would  lead  to  very  perilous  consequences.  What  State  is  there  in  the 
Union  tliat  admits  everybody  to  vote  who  has  the  age  and  residence  which 
their  laws  require,  even  supposing  they  have  a  right  to  prescribe  age  and 
residence'?  Not  one,  as  far  as  I  am  advised.  Which  of  the  States  repre- 
sented in  the  Convention  of  1780,  and  which  afterwards  adopteil,  through 
their  people,  the  Constitution  framed  by  that  Convention,  admitted  all  to 
vote  who  had  the  prescribed  age  and  residence  "?  Not  one.  ...  If  it  is  not 
of  a  republican  form  now,  it  was  not  then.  Can  there  be  a  doubt  about  it  ? 
Contemporary  construction,  to  be  ascertained  by  what  is  not  done  as  well  as 
by  what  is  done,  is  a  familiar  rule  of  interpretation,  not  only  persuasive,  but 
controlling.  .  .  .  Nobody  even  dreamed  that  the  United  States  had  any 
authority  ;  and  the  United  States  not  only  never  attempted  to  exert  it, 
but,  as  far  as  I  am  advised,  no  member  of  Congress,  until  the  last  few  years, 
ever  suggested  it."  The  senator  instanced  the  recent  States,  —  Nevada, 
Oregon,  and  California.     Cong.  Globe,  pp.  189,  190. 


THEORY  OF  OUR  NATIONAL  EXISTENCE.  255 

Revolutionary  Effect  of  this  Construction. 

stood  that  the  word  republic  signified  a  certain  self-deter- 
mining body  of  citizens,  having  the  power,  as  a  corporate 
political  personality,  to  establish,  as  by  their  s-overeign  au- 
tonomy, their  own  form  of  government,  their  own  public 
law ;  and  that  a  form  of  government  so  established  was 
the  only  one  which  could  be  called  republican.  Therefore, 
that  which  the  United  States,  i.  e.,  the  States  in  union, 
reciprocally  guaranteed  must  have  been  the  possession  of 
such  a  power,  by  each  State  as  a  political  people,  being  in 
union  as  one  of  the  United  States ;  they  imposing  in  this 
clause  a  duty  upon  those  who  should,  as  their  servants  or 
agents,  administer  their  will  under  the  Constitution. 

By  this  new  construction  the  positions  of  the  holder  of 
the  claim  and  the  holder  of  the  obligation  are  reversed.  It 
becomes  a  ipoioer  in  the  governing  agent  to  control  the 
existence  of  those  upon  whose  continuing  wills,  as  posses- 
sors of  sovereignty  in  union,  that  governing  agent  had 
depended  for  its  delegated  authority.  The  claim  upon  the 
agent  has  been  turned  into  a  duty  due  to  that  agent ;  if  it 
is  the  right  and  power  of  the  general  government  to  see  to 
it  that  each  State,  or  each  political  people  of  a  State,  main- 
tains a  system  of  public  law,  such  as  may,  in  the  estimate 
of  that  government,  deserve  the  designation  of  republican. 

By  this  construction  these  few  words  of  the  Constitu- 
tion, which  received  little  consideration  from  the  Conven- 
tion,^ become  the  fundamental  provision  of  the  whole  jjublic 

1  This  provision  originated  in  Resolution  No.  11,  of  fifteen  offered,  May 
29,  1787,  in  the  Convention,  by  Randolph  of  Virginia:  "That  a  republican 
government  and  the  territory  of  each  State  (except  in  the  instance  of  a  vol- 
untary junction  of  government  and  territory)  ought  to  be  gu-aranteed  Ijy  the 
United  States  to  each  State."  Elliot's  Debates,  i.  45.  It  was  moved  and 
seconded,  June  11,  1787,  to  agree  to  the  eJeventh  resolution  submitted  by 
Mr.  Randolph,  amended  to  read  as  follows :  "  Resolved,  that  a  republican 
Constitution  and  its  existing  laws  ought  to  be  guaranteed  to  each  State  by 
the  United  States.  Passed  unanimously  in  the  affirmative."  lb.  pp.  169, 
182,  V.  182.  In  the  draft  offered  Aug.  6,  1787,  Art.  xviii.,  it  is  as  it  now 
stands.     More  debate  occurred,  July,  1787.     Elliot's  Debates,  v.  332. 


25G  THE   RECONSTRUCTION   LEGISLATION. 

Wliether  the  Guaranty  had  been  claimed. 

law,  effecting  an  entire  reversal  of  that  investiture  of  sover- 
eign power  by  which  the  written  Constitution  became  a  law ; 
because,  by  this,  the  political  people  of  the  States  united, 
from  whom  it  proceeded,  are  made  dependents  on  the  will  of 
their  own  servants  as  organized  under  that  Constitution. 

But  the  theory  of  reconstruction  by  executing  such 
guaranty  fails,  not  only  because  Congress  would  not  recog- 
nize within  the  territory  of  these  States  an  existing  polit- 
ical people,  capable,  as  a  State,  of  receiving  the  guaranty, 
but  also  because  the  idea  of  guaranty  presupposes  a  party 
in  existence,  who  is  desirous  of  the  benefit  of  the  guarant}'. 

The  people  of  these  States  —  meaning  either  the  political 
people  or  the  mass  of  the  inhabitants — had  by  their  own 
free  action  spurned  the  guaranty  by  rejecting,  as  far  as 
they  could,  their  connection  with  the  United  States,  the 
guarantors,  and  with  the  government  instituted  under  their 
law  in  the  Constitution  in  which  this  provision  is  con- 
tained, and  by  this  abandoned  all  claims  which  a  State  of 
the  Union  can  have,  as  a  State,  on  the  United  States,  or  on 
Congress  or  the  Government  as  their  agent. 

It  is  besides  recorded  in  the  debates  in  Congress,  as 
■well  as  implied  by  the  language  of  the  Reconstruction 
Statutes,  that  the  new  amendments  were  to  be  forced 
upon  the  populations  of  these  States,  if  States  they  must 
be  called,  as  conditions  for  their  being  allowed  to  reorgan- 
ize a  local  government,  and  to  appear  by  representation  in 
Congress  and  to  participate  in  the  election  for  President.^ 

1  See  Act  of  April  10,  1869,  16  U.  S.  Stat.  40,  authorizing  the  submission 
of  the  Constitutions  of  Virginia,  Mississippi,  and  Texas  to  a  vote  of  the 
people,  &c.  Sect.  G,  that  before  the  said  States  "  shall  be  ailniitted  to  repre- 
sentation in  Congress,  tlieir  several  legislatures  which  may  be  hereafter  law- 
fully organized,  shall  ratify  the  fifteenth  article,  which  has  been  proposed  by 
Congress  to  the  several  States  as  an  amendment  to  the  Constitution." 
Also,  tlie  Act  of  Dec.  22,  1869,  il>.  p.  59,  to  promote  the  reconstruction  of  tiie 
State  of  Georgia.     Sect.  8  has  a  similar  projmsition. 

In  view  of  these  facts,  compare,  unte,  p.  19,  citation  of  the  points  taken  in 
White  V.  Hart,  13  Wall.  619,  and  Mr.  Justice  Swayne's  remarks,  accepting 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  257 

Whether  the  Conquest  Theory  may  apply. 

If,  in  the  instance  of  these  ten  States,  there  was  not 
snlficient  evidence  that  the  pre-existing  political  people 
did  not  stand  in  the  position  of  desiderants  of  the  guaranty, 
it  is  difficult  to  conceive  of  a  case  where  it  should  not  be 
wanted.  But  if  the  wishes  of  the  pre-existing  political 
people  were  immaterial  in  this  instance,  then  there  was 
really  no  State  of  the  United  States  to  be  consulted  ;  or 
only  a  State  in  Chief  Justice  Chase's  interpretation  of  the 
word,  as  being  mere  land  and  population  within  the  gen- 
eral domain, 1  and  no  more  a  State,  capable  of  receiving  the 
guaranty,  than  any  Territory,  —  prospectively  a  State. 

As  has  been  already  observed,  it  cannot  be  demonstrated 
from  the  debates  which  accompanied  this  legislation  that 
Congress  proposed  to  act  in  execution  of  the  guaranty ; 
and,  therefore,  on  allowing  all  objections  to  its  applica- 
bility in  this  instance,  the  question  arises,  whether  this 
legislation  should  not  be  accepted  as  the  affirmation  of  the 
doctrine  of  a  conquest  of  these  States.^ 

But  here  it  is  necessary  to  bear  in  mind  the  essential  dif- 
ference between  the  portion  of  the  Act  originally  known 
as  Mr.  Stevens'  bill,  and  the  part  which  originated  in  Mr. 
Bingham's  amendments. 

The  bill  introduced  by  Mr.  Stevens  related  only  to  the 
establishment  of  military  governments  over  the  ten  States, 
without  reference  to  any  reconstruction  or  restoration  to 
an  equality  with  the  other  States.     To  sustain  the  provi- 

the  action  of  Congress  as  conclusive  as  to  the  voluntary  character  of  the 
State's  action.  Such  statements  require  the  fiction  of  a  loyal  minority  beinw 
the  State,  or  of  a  loyal  State  conquered  by  a  disloyal  one  within  the  same 
State  limits ;  as  was  argued  by  the  attorney-general  in  Georgia  v.  Stan- 
ton, ante,  p.  252,  note. 

1  Ante,  p.  14. 

'  It  is  under  an  exposition  of  the  guaranty  clause  that  Judge  Coolcy 
indicates  "  the  legislature  of  the  Union  "  as  "  the  proper  authority  "  for  re- 
construction "  whenever  a  State  government  has  been  displaced  by  rebellion 
or  otlier  force."  The  General  Principles  of  Const.  Law,  &c.,  p.  197.  Judge 
Cooley  presents  this  as  a  doctrine  of  constitutional  law  settled  by  the  de- 
cisions of  the  Supreme  Court  in  Texas  v.  White  aud  Luther  v.  Bordeu. 

17 


258  THE   RECONSTRUCTION   LEGISLATION. 

Stevens's  Bill  founded  on  the  War  Power. 

sions  of  this  bill,  forming  the  first  four  sections  of  the  Act 
as  passed,  more  was  necessary  than  a  recognition  of  the  ex- 
clusive jurisdiction  of  Congress  as  in  a  Territory  ;  whether 
that  jurisdiction  should  have  been  gained  b}'  State-lapse, 
or  by  international  conquest,  or  in  any  other  wny.  For, 
whether  the  general  government  then  held  dominion  as  a 
conqueror  aftej'  a  war,  or  as  legitimate  sovereign  after  a 
suppression  of  a  rebellion,  in  either  case  the  military  au- 
thority should,  b}^  constitutional  law,  be  subordinate  to  the 
civil. 

For  this  reason,  when  Mr.  Stevens  and  others  who  sup- 
ported his  bill  urged  the  political  rights  gained  after  a  con- 
quest, they  were  in  reality  claiming  the  rights  of  belligerent 
power,  as  if  the  state  of  war  still  continued,  contending  that 
the  disloyalty  of  the  white  population,  shown  by  their 
treatment  of  the  freedmen,  and  above  all  by  their  non- 
adoption  of  the  proposed  amendments,  made  the  people  of 
these  States  public  enemies  as  long  as  this  "  disloyalty  " 
should  exist.i , 

1  On  the  12th  of  February,  1867,  in  his  remarks  on  the  Louisiana  Bill 
(ante,  p.  24G),  Mr.  Shellabargcr  said,  "I  shall  confine  what  I  have  to  say 
touching  the  power  of  Congress  to  pass  the  bill  principally  to  our  power  to 
employ  the  military  forces  for  the  purpose  of  enforcing  law  and  order,  as  this 
bill  and  the  one  reported  by  the  Reconstruction  Committee  do,  because,  as  the 
greater  includes  the  less,  if  it  shall  appear  that  we  can  use  the  military  force, 
as  provided  by  the  bill,  a  fortiori  we  can  the  civil  authority  also.  Are,  then, 
the  State  of  Louisiana  and  its  people  in  that  condition  and  state  of  fact 
which  under  our  government  inake  it  legal  to  control  them  by  military 
force?  As  I  said  the  other  day,  this  is  a  question  of  law  dependent,  for  its 
answer,  upon  a  state  of  fact.  That  question  of  fact  is  exactly  this  :  Is  there 
in  Louisiana  such  a  remaining  state  of  hostility,  insubordination,  and  rebel- 
lion to  and  against  the  authority  of  the  United  States  as  that  the  courts  can- 
not and  will  not  redress  personal  grievances  nor  protect  the  loyal  people  1  " 
The  argument  proceeds  to  apply  "  the  law  of  nations  "  as  controlling  the 
case.     Cong.  Globe,  p.  1174. 

In  the  Senate,  Feb.  15,  1867,  on  the  question  of  amending  House  Bill 
No.  114:3  {ante,  p.  231),  Mr.  Lot  M.  Morrill,  of  Maine,  remarked,  "  When  he 
[another  senator]  talks  about  the  apprehension  of  l)eing  accustomed  to  mili- 
tary authority  and  that  here  is  an  in\position  of  military  governments,  he  is 
mistaken.     It  is  no  such  thing.     It  is  simply  in  the  nature  of  an  article  of 


THEORY   OF  OUR  NATIONAL   EXISTENCE.  259 

Whetlier  the  Conquest  Theory  may  apply. 

This  portion  of  the  Act  of  March  2,  1867,  presented, 
therefore,  a  question  of  constitutional  law^  properly  so 
called,  which  was  essentially  distinguishable  from  the  ques- 
tion of  a  conquest,  as  a  basis  for  that  system  of  reconstruc- 
tion which  was  presented  by  Mr.  Bingham's  proposed 
amendments,  afterwards  incorporated  into  the  same  bill. 
But  before  introducing  those  propositions,  Mr.  Bingham 
had  repudiated,  for  himself,  the  idea  of  a  conquest,  by  his 
criticism  on  the  bill  as  introduced  by  Mr.  Stevens. 

In  the  debate  in  the  House,  Feb.  7,  1867,  on  this  bill, 
Mr.  Bingham  said,  — 

"  I  challenge  any  man  here  to-night  to  point  to  any  statute 
passed  by  the  Congress  of  the  United  States,  since  the  opening  of 
this  revolt  on  the  part  of  the  insurgent  States  to  this  hour,  that,  by 
implication  or  otherwise,  by  direction  or  indirection,  intimated  the 
dogma  of  the  chairman  of  the  Committee  of  Reconstruction  on  the 
part  of  the  House  with  which  he  opened  this  debate,  —  that  those 
insurrectionary  States  were  foreign  and  conquered  country." 

Mr.  Bingham  proceeded  to  cite  various  Acts  of  the  Leg- 
islature in  support  of  his  view.     Cong.  Globe,  p.  1080. 

Though  it  may  be  proved,  as  far  as  anything  of  the  sort 
can  be  proved,  that  the  idea  of  conquering  or  even  coer- 
cmg  the  eleven  States,  as  political  personalities,  had  been, 
in  words,  repudiated  by  all  branches  of  the  government 
from  the  first,  and  though  it  ma}^  be  clear  enough  to  some 
minds  that  this  idea  involves  that  of  international  warfare 
between  sovereigns,  and  was  a  practical  recognition  of  the 
position  taken  by  the  eleven  States  before  and  during  the 
war,  still  it  seems  highly  probable  that  by  many  in  Con- 
war,  or  a  rule  for  the  government  of  the  army  in  a  conquered  country,  and 
that  is  all  it  is.  Sir,  by  the  triumph  of  our  arms  we  have  overthrown  re- 
bellion and  civil  war.  These  civil  and  political  communities,  recently  in  in- 
surrection and  war,  are  subdued  and  at  our  feet.  I  assume  that  there  are  no 
civil  tribunals  there,  no  State  governments  which  we  are  bound  to  respect, 
or  which  it  is  safe  for  us  to  respect  and  trust."     Cong.  Globe,  p.  1367. 


260  THE   RECONSTRUCTION  LEGISLATION. 

Conquest  and  Belligerency  :  how  related. 

gress  at  the  time,  as  well  as  by  many  other  more  or  less  in- 
fluential ]3ersons,  it  has  been  regarded  as  the  true  basis  for 
the  reconstruction  of  the  Southern  States,  as  well  as  for 
their  temporary  subjection  to  military  rule.^ 

In  every  instance  of  a  public  war,  two  belligerent  parties 
must  be  presupposed  ;  and  when  a  war  may  have  ended 
by  the  military  defeat  of  one  of  the  belligerents,  that  bel- 
ligerent must  occupy  one  of  two  positions  in  reference  to 
the  successful  party. 

1.  The  defeated  belligerent  may  be  recognized  as  a  politi- 
cal personality,  capable,  by  reason  of  his  pre-existing  status 
alone,  that  is,  irrespectively  of  the  amount  of  military 
force  he  may  have  displayed,  of  exercising  the  vis  bellica, 
being  then  a  belligerent  de  jure.  In  this  case  the  war  has 
been  an  international  war,  whatever  may  have  been  the 
titular  designation  by  which  the  two  adversaries  had  been 
known  to  each  other  and  to  other  nations  ;  and  this  char- 
acter of  the  war  protects  all  persons  acting  under  the  direc- 
tion of  either  belligerent  from  all  criminal  jurisdiction  of 
the  victor  when  hostilities  have  ceased. 

In  this  case,  whether  there  will  be  any  change  of  domin- 
ion over  the  territory  and  population  of  such  defeated  bel- 
ligerent, such  as  is  meant  by  the  word  "  conquest,"  taken 
technically,  will  depend  on  the  will  of  the  prevailing  an- 
tagonist, who  may  or  may  not  become  a  conqueror,  in  the 
technical  sense,  as  well  as  the  victor. 

^  The  theory  of  an  international  conquest,  pure  and  simple,  was,  how- 
ever, rarely  advocated.  One  of  the  most  noted  expositions  was  that  in 
a  speech  in  the  Mouse  of  Representatives,  Dec.  12,  1861,  by  Mr.  M.  F. 
Conway,  of  Kansas,  wiiich  was  of  importance  principally  from  being  one  of 
the  earliest  assertions  of  the  power  of  the  commander-in-chief  to  emancipate 
the  slaves  of  a  belligerent  enemy,  which  was  afterwards  su{)posed  to  have 
been  exercised  by  Mr.  Lincoln.  {Atife,  p.  1SJ5.)  To  support  this,  Mr.  Conway 
took  the  position  that,  when  recognized  as  a  belligerent,  the  Confederate 
States  became  a  distinct  nation  ;  so  that  treason  or  rebellion  could  not  be 
predicated  of  them  or  of  their  citizens.  Cong.  Globe,  2d  Sess.  37th  Cong., 
p.  82. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  261 

Why  a  Conquest  is  excluded. 

2.  On  the  other  hand,  the  unsuccessful  belligerent  may- 
be distinguishable  only  as  a  temporarily  organized  collec- 
tion of  persons,  beginning  its  existence  only  with  the  war 
and  ending  with  it,  being  then  a  belligerent  de  facto.  All 
persons,  who  have  acted  with  it,  as  aiding  and  abetting  it, 
are  protected  under  its  belligerent  capacity  as  to  acts  con- 
nected with  military  operations ;  being  thereby  exempt 
from  civil  and  criminal  prosecutions  for  damages  to  prop- 
erty, and  for  trespass,  arson,  murder,  etc.  Yet  they  remain 
exposed  to  the  penalties  of  treason  at  the  option  of  the  vic- 
tor, as  of  a  belligerent  who  has  vindicated  his  pre-existing 
law  and  political  constitution. 

But  the  same  conditions  exclude  the  idea  of  that  change 
of  dominion  and  jurisdiction  which  we  call  conquest.  The 
victory  in  this  case  consists  in  the  confirmation  of  pre- 
existing dominion  and  jurisdiction. 

Therefore,  with  that  theory  of  belligerency  which  admits 
of  conquest  as  resulting  from  success,  there  could  be  no 
treason  and  no  "  disloyalty  "  ;  and  with  that  theory  of  bel- 
ligerency which  admits  of  punishment  for  treason  or  for 
"disloyalty,"  as  resulting  from  success,  there  could  be  no 
conquest.^ 

As  the  matter  now  stands  in  the  public  law  of  the  world, 
foreign  nations  are  read}'-  to  accept  that  view  which  ex- 
cludes the  idea  of  a  conquest  of  these  States  ;  because  they 
assume  that  any  conquest  must  be  excluded  by  our  own 
view  of  our  internal  public  law.^     Yet  it  may  be  conjec- 

^  Compare,  ante,  pp.  164-205. 

■^  Tliis  was  illustrated  in  the  suits  brought  by  the  United  States  in  Eng- 
lish courts  for  recovery  of  property  held  during  the  war  by  agents  for  the 
Confederate  government.  (Ante,  p.  173,  n.)  But  where  the  relations  of 
non-resident  subjects  of  neutral  nations  are  concerned,  a  conquest  might  be 
supposed ;  or  more  strictly  speaking,  the  rights  and  obligations  of  such  per- 
sons might  be  determined  as  if  there  Iiad  been  a  conquest,  so  far  as  they 
were  concerned.  This,  I  think,  could  have  properly  been  taken  as  tlie  real 
principle  for  the  decision  of  the  English  Vice-Chancellor  in  United  States  of 
America  v.  Prioleau,  2  Hemming  and  Miller's  Chancery  Rep.  559,  and,  with- 


2G2  THE   EECONSTRUCTION   LEGISLATION. 

Inferences  to  be  avoided. 

tured  that  the  actual  militaiy  success  of  the  government 
has,  by  foreign  nations,  been  regarded  as  much  more  in 
the  nature  of  conquest  than  of  suppression  of  a  rebel- 
lion,^ and  that,  if  the  result  had  been  otherwise,  the  estab- 
lishment of  the  Confederacy  would  have  been  accepted, 
not  so  much  as  a  result  of  successful  revolution  as  of 
legitimate  warfare  to  sustain  pre-existing  political  inde- 
pendence. 

According  to  the  view  herein  taken  of  the  effect  of  the 
Secession  Ordinances  followed  by  civil  war,  and  of  the 
limitations  which  should  have  accompanied  the  exercise  of 
belligerent  rights,  the  success  of  the  government  of  the 
United  States  could  have  none  of  the  character  of  a  con- 
quest. But  this  does  not  involve  the  conclusion  that  the 
eleven  States  would  simply  have  stood  again  in  their 
former  places,  like  so  many  truant  school-boys,  repentant 
or  unrepentant,  the  jurisdiction  of  the  government  being 
no  less  and  no  more  than  before,  —  which  was  the  so-called 
"conservative"  doctrine.^  It  would  follow  from  the  view 
here  maintained  as  to  the  operation  of  the  State  ordinances, 
followed  by  the  attemj^t  to  give  them  practical  effect,  that 
the  result  of  the  success  of  the  government  would  be  the 

out  at  all  compromising  the  plaintiffs,  mifjlit  have  been  recognized  by  their 
counsel  in  the  case  of  United  States  v.  Mcllae,  8  Law  Eeports,  Equity,  69. 
As  far  as  such  subjects  of  neutral  nations  were  concerned,  it  was  the  same, 
whether  the  Confederate  government  was  a  government  de  facto  or  de  jure. 
In  a  foreign  court  of  law,  the  government  of  tiie  United  States  might  have 
recognized  the  validity  of  the  relation  between  the  defendant  in  the  neutral 
country,  as  agent,  and  the  Confederacy,  as  his  principal,  and  have  settled 
with  him  as  succeeding,  bji  conquest,  to  the  claims  and  obligations  of  the 
Confederacy,  as  far  as  he  was  concerned,  without  any  con)i)romise  of  its  po- 
sition on  its  own  domain,  as  towards  tiie  rebellion.  To  take  such  a  position 
in  a  foreign  court  would  not  involve  recognition  of  the  Confederate  govern- 
ment as  a  property-holder  within  the  limits  of  the  States.  But  a  ditferent 
view  of  these  cases  was  taken  by  Field,  J.,  in  the  dissenting  opinion,  in 
Sprott  V.  United  States,  20  Wall.  473. 

1  Compare  the  citation  from  I'hillimore,  ante,  p.  184,  note. 

2  That  is  what  was  so  designated  at  the  close  of  the  war.  Compare  the 
Report  of  the  Committee  ou  Reconstruction,  ante,  p.  42,  43,  [a],  [c]. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  203 

Judge  Sprague's  Inferences. 

establishment  of  its  authority,  as  in  a  supposed  case  of  its 
re-establishment  in  a  Territory  of  the  United  States,  after 
a  local  rebellion ;  or  as  would  be  the  case  in  the  suppres- 
sion of  a  rebellion  in  a  country  under  an  integral,  undis- 
tributed, or  unitary  government. 

To  indicate  more  clearly  what  I  do  not  mean  to  suj)port, 
while  rejecting  the  supposition  of  a  conquest  of  the  eleven 
States,  I  quote  here,  from  the  opinion  delivered  by  Judge 
Sprague  in  the  case  of  the  Amy  Warwick,  a  portion  which 
has  often  been  cited  in  arguments  on  the  question  of  the 
status  of  these  States  after  the  war.^ 

The  portion  of  the  opinion  to  which  I  refer  is  found  in 
2  Sprague's  Decisions,  p.  147. 

"An  objection  to  the  prize  decisions  of  the  District  Courts  has 
arisen  from  an  apprehension  of  radical  consequences.  It  has  been 
supposed  that,  if  the  government  have  the  rights  of  a  belligerent, 
then,  after  the  rebellion  is  suppressed,  it  will  have  the  rights  of  con- 
quest ;  that  a  State  and  its  inhabitants  may  be  permanently  divested 
of  all  political  privileges  and  treated  as  foreign  territory  acquired 
by  arms.  This  is.  an  error,  —  a  grave  and  dangerous  error.  The 
rights  of  vpar  exist  only  while  the  war  continues.  .  .  .  Conquest  of 
a  foreign  country  gives  absolute  and  unlimited  sovereign  rights. 
But  no  nation  ever  makes  such  a  conquest  of  its  own  territory.  .  .  . 
The  nation  acquires  no  new  sovereignty,  but  merely  maintains  its 
previous  rights.  .  .  .  And  when,  in  this  civil  war,  the  United  States 
shall  have  succeeded  in  putting  down  this  rebellion  and  restoring 
peace  in  any  State,  it  will  only  have  vindicated  its  original  authority 
and  restored  itself  to  a  condition  to  exercise  its  previous  sovereign 
rights  under  the  Constitution.  In  a  civil  war  the  military  power  is 
called  in  only  to  maintain  the  government  in  the  exercise  of  its  le- 
gitimate civil  authority.  No  success  can  extend  the  powers  of  any 
department  beyond  the  limits  prescribed  by  the  original  law.  That 
would  be  not  to  maintain  the  Constitution  but  to  subvert  it.  Any 
Act  of  Congress  which  would  annul  the  rights  of  any  State  under 

1  As  in  Minority  Report  of  the  Committee  on  Reconstruction,  Rep.  No.  30, 
39th  Congress,  part  1,  p.  4.  Lawrence's  Wheaton  Int.  Law,  p.  605,  Editor's 
note. 


264  THE   RECONSTRUCTION   LEGISLATION. 

Inconsistency  in  Judge  Sprague's  Position. 

the  Constitution,  and  permanently  subject  the  inluibitants  to  arbitrary 
power,  would  be  as  utterly  unconstitutional  and  void  as  the  Seces- 
sion Ordinances  with  which  this  atrocious  rebellion  commenced. 
The  fact  that  the  inhabitants  of  a  State  have  passed  such  ordinances 
can  make  no  difference.  They  are  legal  nullities  :  and  it  is  because 
they  are  so  that  war  is  waged  to  maintain  the  government.  The 
war  is  justified  only  on  the  ground  of  their  total  invalidity." 

Judge  Sprague,  it  will  be  remembered,  rested  his  decis- 
ion of  this  case  on  the  principles  of  prize  law,  applicable 
against  alien  enemies  in  international  warfare.^  There- 
fore, in  denying  the  possibility  of  the  government's  acquir- 
ing "absolute  and  unlimited  sovereign  rights,"  as  on 
conquest  of  a  foreign  countr}^  this  portion  of  his  opinion 
was  in  opposition  to  that  view  of  the  political  facts  on 
which  alone  his  judgment  in  the  case  could  be  sustained. 
By  upholding  his  decision  condemning  the  vessel,  the  Su- 
preme Court  accepted  those  premises  which  conflicted  with 
his  own  limitation  of  the  political  consequences  of  the  mili- 
tary success  of  the  government.  The  court  has  never,  I 
believe,  repudiated  in  terms  this  portion  of  his  opinion, 
though  it  lias  accepted,  as  not  inconsistent  with  the  written 
Constitution,  that  action  of  tlie  political  department  which 
has  discredited  the  judge's  exposition  of  the  prospective 
status  of  the  eleven  States. 

Still,  it  may  be  questioned  whether  any  more  intelligible 
and  consistent  explanation  of  the  prospective  position  of 
the  government,  after  having  asserted  the  rights  of  a  bel- 
ligerent, has  ever  been  given  by  the  national  judiciary  than 
that  which  was  attempted  in  this  opinion  b}^  Judge 
Sprague  in  1862.  It  was  accepted,  I  believe,  at  the  time 
by  all  who  supported  the  war  measures  of  the  government. 
It  was,  as  far  as  can  be  known,  the  idea  which  Mr.  Lincoln 
entertained,  and  which  he  attempted  to  apply  in  his  own 
methods  of  reconstruction.      It  was  that  to  which  Mr. 

1  Ante,  p.  169. 


THEORY   OF  OUfl   NATIONAL   EXISTENCE.  265 

Relation  of  Conquest  and  State  suicide. 

Johnson  professed  his  adherence  afterwards,  and  which 
became  the  foundation  of  his  disagreement  with  Congress. 
This  opinion  was  expressly  referred  to  in  the  Minority  Re- 
port from  the  Committee  on  Reconstruction  as  doctrine  on 
which  the  war  had  been  conducted,  but  according  to  which 
the  measures  proposed  by  the  majority  were  unconstitu- 
tional and  revolutionary. 

All  that  the  Supreme  Court  has  done  since  this  opinion 
was  delivered  has  been  to  accept  the  political  situation 
without  being  able  to  explain  it. 

The  theory  of  conquest,  as  in  an  international  war,  in- 
volves the  supposition  that  the  States  composing  the  Union 
held  sovereignty  in  severalty.  It  is  therefore  necessarily 
in  contradiction  to  the  theory  of  State  lapse  which  I  have 
herein  presented  as  a  consequence  from  the  fact  that  the 
States  were  always  sovereign  in  union,  but  never  other- 
wise. It  has  been  seen,  however,  that  those  who  in  Con- 
gress were  known  to  have  held  a  certain  doctrine  of  State- 
suicide  found  no  difficulty  in  supporting  the  bill  originally 
introduced  by  Mr.  Stevens,  professedly  based  on  the  doc- 
trine of  conquest,  or  thought  it  unnecessary  to  distinguish 
their  own  ground  for  supporting  it  as  being  different.  But 
the  explanation  of  this  is  given  in  the  fact  that  the  inten- 
tion of  the  supporters  of  that  bill  was,  not  reconstruction, 
but  to  place  military  above  civil  authority  on  the  founda- 
tion of  a  supposed  continuing  state  of  Avar ;  which  being 
accepted,  the  political  status  of  the  State,  as  either  con- 
quered or  lapsed,  was  matter  of  indifference.^ 

From  the  fact  that  the  resolutions  of  Mr.  Sumner  of 
Massachusetts,  and  of  Mr.  Howe  of  Wisconsin,  in  the  Senate, 
and  of  Mr.  Boutwell  of  Massachusetts,  in  the  House,  affirm- 
ing a  doctrine  of  State-suicide,  were  all  tabled,^  it  would 

1  Compare  ante,  p.  254. 

2  Mr.  Sumner's  Resolutions,  Feb.  11,  1864.  Macpherson's  Hist.  p.  322. 
Mr.  Boutwell's,  Feb.  16,  1864,  (7;.  p.  328.  Mr.  Howe's  Jan.  10,  1866;  Cong. 
Globe,  15  Sess.  39th  Cong.  p.  162. 


266  THE   RECONSTRUCTION  LEGISLATION. 

Other  Supporters  of  Reconstruction. 

appear  that  it  was  at  no  period  acceptable  to  Congress,  and 
therefore,  though  the  authors  of  tliese  resolutions  finally 
supported  this  reconstruction  legislation  of  the  Thirty- 
ninth  Congress  by  their  votes,  their  arguments  in  support 
of  those  resolutions  cannot  be  cited  as  indicating  the 
theory  assumed  for  this  legislation. 

As  observed  already,  the  arguments  by  which  this  legis- 
lation was  supported  in  Congress  at  the  time,  are  not 
necessarily  the  only  arguments,  or  the  best  possible  argu- 
ments, to  support  such  legislation.  Here,  they  have  been 
cited  rather  as  part  of  the  res  gestce,  or  to  show  the  inten- 
tion of  the  transaction  as  a  political  fact,  than  as  arguments 
by  which  the  accordance  of  such  legislation  with  the  actual 
national  existence  should  be  judged. 

It  may  be  that  better  arguments  for  such  legislation  have 
been  presented  by  private  citizens,  or  such  as  had  no  po- 
litical functions,  as  legislators,  at  this  crisis.  Such  argu- 
ments of  course  can  have  no  claim  to  authority,  either  as 
justification  or  explanation  of  the  action  of  Congress,  what- 
ever may  be  the  reputation  of  their  authors  or  their  intrin- 
sic merit.  Yet,  whether  intended  to  support  or  to  oppose 
the  actual  legislation  of  Congress,  they  may  assist  in  indi- 
cating the  political  theory  supposed  to  have  been  applied, 
even  if  they  could  not  be  regarded  as  being  on  the  same 
level,  in  that  respect,  with  remarks  made  in  Congress  itself. 

It  will  not  be  difficult  to  recall  the  fact  that  an  acrimo- 
nious political  controversy  at  the  North  accompanied  the 
whole  course  of  the  secession  rebellion,  the  war,  and  the 
reconstruction  era,  expressed  not  only  by  forensic  discus- 
sions, but  in  a  flood  of  printed  publications.  Some  of 
these,  of  a  date  earlier  than  the  close  of  the  war,  have 
already  been  noticed  in  connection  with  the  question  of 
belligerency.  The  actual  military  suppression  of  the  re- 
bellion and  the  distinct  issue  raised  by  the  o])position  be- 
tween  President  Johnson   and   the   majority  in  Congress 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  267 

Judge  Parker  in  the  Nortli  American  Review. 

gave  occasion  to  a  variety  of  pamphlet  essays,  review  arti- 
cles, etc.,  more  especially  directed  to  the  question  of  recon- 
struction, which  brought  out  more  clearly  the  differences 
of  opinion  existing  among  those  who  had  joined  in  support- 
ing the  government  during  the  war. 

To  attempt  anything  like  a  critical  review  of  these  more 
or  less  ephemeral  productions,  as  a  manifestation  of  public 
opinion,  would  of  course  be  a  task  as  hopeless  as  any  analy- 
sis of  the  multifarious  discussions  in  the  journals  of  Con- 
gress. It  is  sufficient  to  notice  that  the  differences  of  view 
in  these  publications  would,  ahnost  of  necessity,  correspond 
with  those  seen  in  the  debates  in  Congress  at  the  same  time 
on  the  same  subjects,  and  that  they  would  answer  either 
to  the  so-called  conservative  view,  or  to  that  founded  on 
the  guaranty  of  republican  government  (either  to  "  disor- 
ganized States,"  or  to  States  whose  institutions  were  not 
then  republican),  or  to  that  founded  on  the  conquest 
theory,  blended  more  or  less  with  some  theory  of  a  State- 
suicide. 

There  are,  however,  some  of  these  which  may  here  re- 
ceive special  notice,  not  merely  from  their  intrinsic  or  com- 
parative merit,  but  more  particularly  as  written  by  authors 
of  high  reputation  as  individuals,  who,  at  the  same  time, 
were  closely  associated  with  that  school  of  political  doctrine 
for  which  Judge  Story  and  Mr.  Webster  were  leading  au- 
thorities.^ 

I  think  I  need  feel  no  hesitation  in  referring  to  articles 
published  from  time  to  time  in  the  North  American  Re- 
view, during  the  period  from  1861  to  1867,  as  eminently 
entitled  to  consideration  as  indices  of  opinion. 

In  the  numbers  in  this  Review  commencing  with  April, 
1861,  and  ending  with  October,  1862,  the  articles  bearing 
most  directly  on  the  constitutional  questions  arising  from 
the  Rebellion  were  contributed  by  the  late  Joel  Parker, 

1  Ante,  p.  113. 


2(38  THE   RECONSTRUCTION   LEGISLATION. 

View  taken  by  Judge  Curtis. 

Roj'all  Professor  in  the  Law  School  of  Harvard  College, 
Cambridge,  Massachusetts.^ 

Ill  the  latest  of  these  articles  is  the  following  passage  :  — 

"  The  case  stands  thus.  If  the  Rebellion  is  suppressed  and  the 
seceeding  States  are  '  subjugated,'  they  return  to  their  places  in  the 
Union,  with  all  the  rights  and  privileges  which  they  had  before ; 
unless  by  the  tenacity  of  their  resistance  they  aid  the  abolitionists 
in  getting  up  another  revolution  founded  on  immediate  emancipa- 
tion, through  conquest  or  State-suicide,  and  a  prostration  of  State 
rights  not  warranted  by  the  Constitution," 

The  earlier  articles  contributed  by  Professor  Parker 
were  in  harmony  with  this,  and  agreed  with  the  view 
taken  by  Judge  Sprague  in  the  extract  last  cited  from  his 
opinion  in  the  Amy  Warwick.  Professor  Parker's  contri- 
butions to  the  Review  were  succeeded  by  others  of  a  dif- 
ferent tenor  relating  to  the  same  general  subject.^ 

Among  those  who  must  always  be  classified  with  the 
"best  minds  "  of  any  part  of  the  countrj^  was  the  late  B. 
R.  Curtis,^  of  Boston,  whose  letter,  July  25, 1866,  addressed 
to  the  so-called  Conservative  Convention  at  Philadelphia, 
of  Aug.  14  of  the  same  year,  may  be  found  in  his  Memoir 
vol.  i.,  p.  390,  in  which  he  sustained  the  same  view  as 
against  the  doctrines  of  conquest,  State-suicide,  and  recon- 

1  At  one  time  the  Chief  Justice  of  the  Supreme  Court  of  New  Hamp- 
shire. These  articles  were:  July,  18G1,  The  Riglit  of  Secession;  October, 
1861,  Habeas  Corpus  and  Martial  Law  ;  April,  18G2,  Constitutional  Law ; 
July,  18G2,  International  Law  (supporting  the  seizure  of  Messrs.  Mason  and 
Slidell) ;  October,  1862,  The  Character  of  the  Rebellion  and  the  Conduct  of 
the  War. 

2  He  also  published,  however,  in  pamphlet,  lectures  delivered  before  the 
Law  Scliool,  in  January,  18G5,  and  January,  186G,  entitled  Revolution  and 
Reconstruction,  and  in  1869  an  address  delivered  at  Dartmouth  College, 
New  Hampsliire,  published  under  the  title,  The  Three  Powers  of  Govern- 
ment. The  Origin  of  the  United  States,  and  the  Status  of  the  Southern 
States  of  the  Suppression  of  the  Rebellion.  The  Three  Dangers  of  the 
Republic. 

8  Associate  Judge  of  the  Supreme  Court  of  the  Linited  States'from  1851 
to  1857. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  269 

Views  taken  by  Judge  Redfield  and  Mr.  Loring. 

struction  by  the  supposed  guaranty  of  republican  govern- 
ment.    One  paragraph  only  can  here  be  quoted :  — 

"After  much  reflection,  and  with  no  such  partiaHty  for  executive 
power  as  would  be  likely  to  lead  me  astray,  I  have  formed  the 
opinion  that  the  Southern  States  are  now  as  rightfully,  and  should 
be  as  effectually,  in  the  Union,  as  they  were  before  the  madness  of 
their  people  attempted  to  carry  them  out  of  it;  and  in  this  opinion 
I  believe  a  majority  of  the  people  of  the  Northern  States  agree." 
ib.  p.  393. 

Other  gentlemen,  also  in  the  legal  profession  and  equally 
well  reputed  in  the  same  community,  advocated  in  their 
publications  a  view  more  in  harmony  with  that  given  in 
Mr.  Bingham's  remarks  in  Congress,  which  they  preceded 
in  point  of  time,  than  with  any  other. 

In  a  letter  ^  of  Judge  Redfield  to  Senator  Foot  of  Ver- 
mont, dated  Boston,  Sept.  30,  1865,  the  writer  took  the 
position  that  the  State  remained  unaffected  by  any  ordi- 
nance of  secession  or  any  acts  of  rebellion ;  while  its  politi- 
cal capacities  continued  vested  in  the  "  loyal  persons " 
to  be  found  therein ;  that,  as  "  the  war  had  demonstrated 
the  incompatibility  of  slavery  with  the  successful  opera- 
tion of  the  national  government,  it  may  therefore  insist 
upon  its  abolition  by  the  States ; "  that,  though  "  the 
regulation  of  the  elective  franchise  is  reserved  and  con- 
ceded to  the  States,"  yet,  under  the  guaranty  of  republican 
government,  they  may  be  compelled  to  admit  the  eman- 
cipated slaves  to  suffrage,  because  "  republican  govern- 
ment implies  the  representation,  in  some  form,  of  the 
entire   population." 

Another  publication,  sustaining  similar  views,  appeared 
about  the  same  time  from  the  pen  of  the  late  Mr.  Charles 

'  Printed  first  in  tlie  Rutland  Herald,  afterwards  in  pamphlet.  Isaac  S. 
Redfield,  then  of  the  Boston  bar,  author  of  several  legal  treatises,  had  been 
Chief  Justice  of  the  Supreme  Court  of  Vermont.  His  earlier  publication  on 
the  international  aspect  of  the  war  has  been  noticed,  ante,  p.  205,  note. 


270  THE  RECONSTRITCTION  LEGISLATION. 

Views  taken  by  Mr.  Bishop  and  Mr.  Lowell. 

G.  Loring,  a  gentleman  of  very  high  standing  at  the 
Boston  bar.  A  portion  of  this  essay,  part  ii.,  ch.  i.,  was 
especially  directed  in  answer  to  Judge  Curtis's  letter  already 
mentioned.  In  this  publication  the  power  of  Congress  to 
prescribe  conditions  for  new  constitutions  of  State  govern- 
ment was  maintained  by  arguments  substantially  like  those 
afterwards  presented  in  Congress  by  Mr.  Bingham. ^  But, 
in  justifying  the  system  of  military  governments,  there  was 
a  more  distinct  leaning  to  some  doctrine  of  State-suicide,  or 
of  conquest. 

Mr.  Bishop,  a  well-known  author  and  member  of  the 
Boston  bar,  in  a  pamphlet  which  has  already  been  cited,^ 
stated  the  case  as  follows  :  — 

"  The  seceded  States  are  still  States  in  the  Union,  but  they  are 
denuded  of  their  State  governments  (this  is  the  position  of  the 
present  pamphlet).  .  .  .  The  United  States  must  clothe  the  States 
with  republican  governments  under  the  Constitution,  taking  for  the 
puriTOse  the  material  which  presents  itself,  namely,  the  negroes  and 
the  loyal  whites.  This  last  answer  brings  us  again  to  the  doctrine 
which  this  pamphlet  maintains.  It  is  what  the  writer  believes 
to  be  the  doctrine  of  the  law,  and  in  all  the  discussions  which  the 
times  have  brought  out,  no  man  has  yet  appeared  to  controvert  on 
any  basis  of  legal  authority  this  doctrine." 

After  the  termination  of  Judge  Parker's  contributions  to 
tlie  North  American  Review,  the  articles,  for  the  ensu- 
ing two  years,  most  directly  bearing  on  the  political  ques- 
tion of  the  time  were  contributed  by  Mr.  James  Russell 

1  Reconstruction.  Claims  of  the  Inhabitants  of  the  States  engaged  in  the 
Rebellion  to  Restoration  of  Political  Rights  and  Privileges  under  the  Con- 
stitution. Boston:  Little,  Brown  &  Co.  1860.  Pp.  126.  This  pamph4et 
was  spt'cialiy  reviewed  by  Judge  Parker  in  the  address  delivered  at  Dart- 
mouth College. 

2  Ante,  p.  200,  note.  Secession  and  Slavery,  or  the  Effect  of  Secession 
on  the  Relation  of  the  United  States  to  the  Seceded  States  and  to  Slavery 
therein  :  Considered  as  a  Question  of  Constitutional  Law,  chiefly  under  the 
Decisions  of  tiie  Supreme  Court,  embracing  also  a  Review  of  the  President's 
Plan  of  Reconstruction.  A.  Williams  &  Co.,  Boston.  180-1.  Second  edition. 
1866. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  271 

Mr.  Lowell  in  the  North  American  Review. 

Lowell,  of  Cambridge,  Massachusetts.^  These  articles 
were  not  merely  in  opposition  to  the  so-called  conservative 
theory  upheld  by  Judge  Sprague,  Judge  Parker,  and  Judge 
Curtis,  but  were  mainly  expository  of  the  idea  of  a  con- 
quest of  slavery  as  a  principle  personified,  rather  than  of  a 
conquest  maintaining  any  particular  political  supremacy ; 
and  asserted  a  power  and  duty  of  Congress  to  make  the 
equality  of  all  persons  the  basis  of  State  existence,  at  least 
in  the  instance  of  the  ten  Southern  States.  This  may  ap- 
pear from  the  following  extract  from  the  article  in  the  July 
number,  1865,  p.  201. 

"  "What  have  we  conquered  ?  The  Southern  States  ?  The 
Southern  people?  A  cessation  of  present  war?  Surely  not  these 
or  any  of  these  merely.  The  fruit  of  our  victory,  as  it  always  was 
the  object  of  our  warfare,  is  the  everlasting  validity  of  the  Declara- 
tion of  Independence  in  these  United  States  and  the  obligation 
before  God  and  man  to  make  it  the  rule  of  our  practice.  It  was 
in  that  only  that  we  were  stronger  than  our  enemies,  stronger  than 
the  public  opinion  of  the  world ;  and  it  is  from  that  alone  that  we 
derive  our  right  of  the  strongest,  for  it  is  wisdom,  justice,  and  the 
manifest  will  of  Him  who  made  of  one  blood  all  the  nations  of  the 
earth." 

It  can  hardly  be  said  of  any  of  these  writers,  who,  against 
the  so-called  conservative  doctrine,  supported  the  power 
of  Congress  to  impose  new  governments,  as  republican, 
upon  the  ten  States  as  "  disorganized  States,"  that  they 
rested  their  argument  on  either  the  theory  of  conquest  or 
on  that  of  State-suicide,  though  many  passages  might  be 

1  At  that  time  Professor  of  the  French  and  Spanish  Languages  and  Lit- 
erature and  of  Belles  Lettres  in  Harvard  College,  Cambridge,  Massachusetts  ; 
afterwards  Minister  to  Spain  and  to  England.  The  articles  were  :  January, 
1864,  the  President's  Policy.  (Tliis  called  forth  the  letter  from  Mr.  Lincoln 
to  the  editors,  dated  Jan.  16,  1864 :  Macpherson's  History,  336.)  July,  1864, 
The  Rebellion  :  Its  Causes  and  Consequences.  October,  1864,  The  Next 
General  Election.  April,  1865,  Reconstruction.  July,  1865,  Scotch  the 
Snake,  or  Kill  it?  January,  1866,  The  President  on  the  Stump.  October, 
1866,  The  Seward-Johnson  Reaction. 


THE   KECONSTRUCTION  LEGISLATION. 


Attitude  of  these  writers  towards  Webster's  opinions. 

found  in  the  publications  of  each  which  are  consistent 
with  one  or  the  other  doctrine  and  with  no  other. 

Senator  Sumner  and  Mr.  Bout  well,  both  of  Massachu- 
setts, were,  as  has  been  noticed,  pronounced  advocates  for 
the  doctrine  of  State-suicide  as  a  consequence  of  the  ordi- 
nances of  secession  followed  by  actual  warfare  ;  though, 
from  their  agreement  with  Mr.  Stevens,  in  reference  to  his 
bill  in  the  thirty-second  Congress,  it  may  be  inferred  that 
they  made  little  objection  to  calling  it  a  conquest.^ 

In  view  of  the  position  occupied  in  their  own  State  by 
the  gentlemen  whose  individual  opinions  have  just  been 
noticed,  no  one  would  dispute  their  right  to  be  mustered 
among  the  "  best  minds  of  New  England,"  and  there  can 
be  little  question  that  they  all  held,  more  or  less  definitely, 
in  common  with  Mr.  Webster,  those  opinions  which  his  bi- 
ographer has  described  as  constituting  "  the  sole  ground 
upon  which  the  supremacy  claimed  by  the  Constitution,  as 
the  supreme  law  of  the  land,  can  be  maintained."'^ 

But,  on  this  question  of  reconstruction,  these  gentlemen 
were  at  loggerheads  ;  and,  whether  any  of  them  were  right 
or  not,  it  may  naturally  be  asked,  What  is  the  value  of 
these  opinions,  if  such  minds,  at  such  a  crisis  of  their 
country's  fate  as  occurred  in  1861-1867,  were  driven  to 
differ  so  greatly  in  their  application  ? 

But,  independently  of  all  contradictions  which  may  be 
shown  to  exist  in  the  various  arguments,  either  in  or  out 
of  Congress,  supporting  its  legislation  in  reconstruction, 
they  are  all,  politically,  worthless.  For  they  all,  with  the 
apparent  exception  perhaps  of  the  conquest  tlieor}-,  pure 

1  Mr.  Boutwell,  in  an  oration,  July  4,  1865,  at  Weymouth,  Mass.,  pub- 
lished as  a  pamphlet  with  the  title.  Reconstruction  and  Its  True  Basis, 
p.  23,  spoke  of  the  doctrine  of  conquest  as  thouyjh  it  could  be  reconciled  with 
the  theory  of  a  State-suicide. 

2  Ante,  p.  115,  note.  I  have  been  informed  that  Judge  Parker  and  Judge 
Redfield  were  classed  politically  as  Democrats.  But,  from  their  writings, 
I  infer  that  they  accepted  some  one  of  those  views  taken  by  the  Story  and 
Webster  school,  presented  ante,  pp.  100-102,  under  headings  iii.,  iv.,  v. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  273 

Mr.  Sumner's  Theory. 

and  simple,  affirm  the  possibility  of  forfeiture,  by  the 
States,  as  political  j^ersonalities,  of  rights  and  privileges 
held  under  the  written  Constitution  as  law.  But  this 
proposition,  as  a  matter  of  doctrine,  rests  either  on  the 
notion  that  the  Constitution  can  of  and  by  itself  operate 
as  law,  which  is  the  fetish  constitution,  pure  and  simple,^ 
or  on  the  assumption  that,  as  matter  of  political  fact,  a 
nation  or  people  has  been  distinguishable  from  the  States 
United ;  which  nation,  the  nation  by  hypothesis,  gave  and 
had  continued  to  give  the  force  of  law  to  that  constitu- 
tion, —  an  assumption  which  is  contradicted  by  the  history 
of  the  country  ^  before  1861. 

So  far  as  I  know  of  any  reasonings  supporting  a  doc- 
trine of  State-suicide  which  had  been  offered  in  or  out  of 
Congress,  they  are,  with  the  single  exception  of  Dr. 
Brownson's  in  "  The  American  Republic,"  from  which  I 
have  largely  cited,  liable  to  the  same  objection. ^ 

This,  I  think,  may  appear  particularly  obvious  in  the 
resolutions  offered  by  Mr.  Sumner  in  the  Senate,  Feb.  11, 
1862,*  entitled  "  Resolutions  declaratory  of  the  relations 

1  Ante,  p.  100. 

2  Ante,  p.  113. 

3  An  article  contributed  by  me  to  the  "  American  Law  Eeview  "  for  Jan- 
uary, 1867,  vol.  i.  pp.  1-25,  entitled  Theories  of  Reconstruction,  presents  an 
analysis  of  the  different  plans  or  methods  offered  at  that  time,  as  being  all 
founded  on  the  idea  of  enforcing  such  a  law,  with  a  brief  statement  of  that 
solution  of  the  question,  which  is  here  again  supported  as  the  true  or  actual 
one.  In  the  conclusion  of  this  article  I  had  mentioned  a  series  of  letters  in 
"  The  Nation,"  vol.  i.  Nos.  1,  18,  21,  '23,  25,  26  (from  July  6,  to  Dec.  28, 
1866),  by  Mr.  George  P.  Marsh,  as  sustaining  the  doctrine  of  State-suicide 
on  a  theory  of  national  existence  like  that  presented  by  Dr.  Brownson.  On 
further  examination  of  these  letters,  however,  I  find  that  the  writer  had 
adopted  the  view  of  the  Constitution  derived  from  a  hypothetical  people  or 
nation,  and  acting  on  the  States  as  municipal  corporations  under  law ;  his 
argument  being  substantially  like  Mr.  Sumner's. 

<  Cong.  Globe,  2d  Sess.  37th  Cong.  p.  736 ;  Macpherson's  Hist.  p.  322. 
The  more  brief  and  terse  resolution  offered  in  the  Senate  by  Mr.  Howe,  of 
Wisconsin,  Jan.  10,  1866,  Cong.  Globe,  1st  Sess.  39th  Cong.  p.  162,  is  open 
to  the  same  objection,  speaking  of  "  political  functions  formerly  granted  " 
to  the  people  of  these  States. 


274  THE   RECONSTRUCTION   LEGISLATION. 

Mr.  Sumner's  Resolutions. 

between  the  United  States  and  the  territory  once  occupied 
by  certain  States,  and  now  usurped  by  pretended  govern- 
ments, without  constitutional  or  legal  right." 
The  preamble  recited  — 

"  Whereas  certain  States,  rightfully  belonging  to  the  Union  of 
the  United  States,'  have,  through  their  respective  governments, 
wickedly  undertaken  to  abjure  all  those  duties  by  which  their  con- 
nection with  the  Union  was  maintained,  to  renounce  all  allegiance 
to  the  Constitution,^  to  levy  war  upon  the  national  government,  and, 
for  the  consummation  of  this  treason,  have  unconstitutionally  and 
unlawfully  confederated  together,  with  the  declared  purpose  of 
putting  an  end  to  the  supremacy  of  the  Constitution  within  their 
respective  limits,  .  .  .  and  whereas  the  extensive  territory  thus 
usurpe<l  by  these  pretended  governments  and  organized  into  a 
hostile  confederation  belongs  to  the  United  States  as  an  inseparable 
part  thereof,  under  the  sanctions  of  the  Constitution,  to  be  held  in 
trust  for  the  inhabitants  in  the  present  and  future  generations,  and 
is  so  completely  interlinked  with  the  Union  ^  that  it  is  forever  de- 
pendent thereupon  ;  and  whereas  the  Constitution,  which  is  the 
supreme  law  of  the  land,  cannot  be  displaced  in  its  rightful  opera- 
tion within  this  territory,  but  must  forever  continue  the  supreme 
law  thereof,  notwithstanding  the  doings  of  any  pretended  govern- 
ments acting  singly  or  in  confederation  in  order  to  put  an  end  to  its 
supremacy,  Therefore  — 

1.  Resolved,  that  any  vote  of  secession  or  other  act,  by  which 
any  State  may  undertake  to  put  an  end  to  the  supremacy  of  the 
Constitution  within  its  territory,  is  inoperative  and  void  against 
the  Constitution,  and,  when  sustained  by  force,  becomes  a  practical 
abdication  by  the  State  of  all  rights  under  the  Constitution,  while 

1  Tl)is  suggests  the  inquiry,  Is  "  the  union  of  tlie  United  States  "  some- 
thing different  from  the  union  of  the  States  or  from  the  United  States  ? 

2  Allegiance  is  never  due  to  a  law.  It  can  only  be  due  to  some  person 
or  persons.  The  position  of  a  State  in  the  Union  with  the  other  States  had 
not  been  matter  of  duty;  because  the  possession  of  sovereignty,  either  alono 
or  with  others,  cannot  be  under  law. 

8  If  Mr.  Sumner  had  ever  defined  what  lie  meant  by  "the  United  States" 
and  "  the  Union,"  or,  perhaps,  had  himself  had  a  definite  conception  on  the 
subject,  he  might  have  framed  resolutions  which  would  have  received  more 
atteutiou. 


THEORY   OF   OUR    NATIONAL   EXISTENCE.  275 

Weakness  of  the  Conservative  View. 

the  treason  which  it  involves  still  further  works  an  instant  forfei- 
ture^ oi  all  those  functions  and  powers  essential  to  the  continued' 
existence  of  the  State  as  a  body  politic,  so  that  from  that  time  for- 
ward the  territory  falls  under  the  exclusive  jurisdiction  of  Congress, 
as  other  territory,  and  the  State,  being  according  to  the  language 
of  the  \?iV}  felo-de-se,  ceases  to  exist."  ^ 

If  the  question  had  been  one  which  could  have  been 
considered  from  the  lawyer's  point  of  view,  that  is,  as  a 
question  to  be  settled  by  a  law,  the  strength  of  the  argu- 
ment would  have  been  altogether  with  the  so-called  con- 
servative doctrine,  —  the  view  taken  by  Judge  Sprague, 
Judge  Curtis,  Judge  Parker,  by  Mr.  Johnson,  and  also,  to 
some  extent,  by  Mr.  Lincoln. 

But  when  the  result  of  military  operations  allowed  the 
general  government,  as  the  prevailing  belligerent,  to  show 
by  its  action  as  a  government,^  that  it  had  vindicated  the 
power  of  a  sovereign  against  rebellion,  this  view  of  the 
matter,  as  a  question  of  law,  disappeared  of  necessit}^ 
For  the  assumption  on  which  it'  rested  —  that  the  States 
were  the  personalities  under  the  law  —  was  inconsistent 
with  the  idea  of  any  treason  in  private  individuals,  or  with 
any  rebellion,  in  the  ordinary  sense  ;  and,  logically,  it  pre- 
sented the  alternative,  —  either  the  assertion  of  rights  of 
conquest  under  the  law  of  international  warfare,  or,  if 
such  a  conquest  were  abandoned,  the  recognition  of  the 
eleven  States  at  the  end  of  the  war,  as  standing  in  the 
same  position  as  before  1861.^ 

1  Treasonable  abdication  is  contradiction  in  terms.  A  person  who  is  in  a 
situation  to  abdicate  a  right  or  power  cannot  be  under  an  obligation  to  any- 
body to  exercise  that  right  or  power.  And,  how  can  a  person  forfeit  what 
he  has  already  abdicated  ?  Or  what  is  abdication  or  forfeiture  by  "  void  " 
action  1 

2  To  make  the  parallel  good,  Mr.  Sumner  must  have  meant  that  the  fact 
of  death  depends  on  the  answer  to  the  question  of  felony  or  no  felony ;  to 
be  given  when  inquest  is  held  over  the  body. 

2  Compare  the  general  proposition  at  the  beginning  of  the  first  chapter. 
*  Mr.  A.  H.  Stephens,  tlie  vice-president  of  the  government  organized  by 
the  Confederacy,  was  consistent  in  taking  this  position,  saying  in  an  address 


276  THE  RECONSTRUCTION  LEGISLATION. 

Other  Views  of  State-suicide. 

The  method  which  I  have  followed,  in  looking  to 
■  the  action  of  the  government  as  indicative  of  the  political 
theory  to  be  determined,  does  not  require  that  I  should 
refer  to  the  reasoning  of  anyone,  however  distinguished 
for  legal  or  political  knowledge,  either  in  or  out  of  Con- 
gress, as  authority  for  the  support  of  any  doctrine  I  may 
have  arrived  at  independently. 

But  from  various  statements  made  by  several  well-known 
advocates  of  some  doctrine  of  State-suicide,^  I  cite  one 
passage  as  expressing  a  view  the  nearest  to  my  own. 

before  the  General  Assembly  of  the  State  of  Georgia,  Feb.  22,  1866, 
"  Another  of  our  present  duties  is  tliis :  We  should  accept  the  issues  of 
the  war  and  abide  by  them  in  good  faitli.  This,  I  feel  fully  persuaded,  it  is 
your  purpose  to  do,  as  well  as  that  of  j'our  constituents.  The  people  of 
Georgia  have  in  convention  revoked  and  annulled  her  ordinance  of  1861, 
which  was  intended  to  sever  her  from  the  compact  of  Union  of  1787.  The 
Constitution  of  the  Uniteil  States  has  been  reordained  as  the  organic  law  of 
our  land.  Whatever  differences  of  opinion  heretofore  existed  as  to  wliere 
our  allegiance  was  due  during  the  late  state  of  things,  none,  for  any  practi- 
cal purpose,  can  exist  now.  Whether  Georgia,  by  the  action  of  her  conven- 
tion in  1861,  was  ever  rightfully  out  of  the  Union  or  not,  there  can  be  no 
question  that  she  is  now  in,  so  far  as  depends  upon  her  will  and  deed.  The 
whole  United  States,  therefore,  is  now  without  question  our  country,  to  be 
cherished  and  defended  as  such  by  all  our  hearts  and  by  all  our  arms. 

"  The  Constitution  of  the  United  States  and  the  treaties  and  laws  made  in 
pursuance  thereof  are  now  acknowledged  to  be  the  paramount  law  in  this 
whole  country.  Whoever,  therefore,  is  true  to  these  principles,  as  now 
recognized,  is  loyal,  as  far  as  that  term  has  any  legitimate  use  or  force  under 
our  institutions.  This  is  the  only  kind  of  loyalty  and  the  only  test  of  loy- 
alty the  Constitution  ilself  requires.  In  an3'  other  view  everything  pertain- 
ing to  restoration,  so  far  as  regards  the  great  body  of  the  people  in  at  least 
eleven  States  of  the  Union,  is  making  a  promise  to  the  ear  to  be  broken  to 
the  hope.  All,  therefore,  who  accept  the  issue  of  war  in  good  faith,  and 
come  up  to  the  test  required  by  the  Constitution  are  now  loyal,  however 
they  may  heretofore  have  been." 

1  Mr.  Sumner  seems  to  have  recoiled  at  times  from  accepting  fully  the 
consequences  of  his  own  propositions;  as  in  the  remarkable  debate  in  the 
Senate,  Dec.  19,  1806,  on  the  admission  of  Nebraska,  in  which  senators  Wil- 
son, of  Massachusetts,  Doolittle,  of  Wisconsin,  Fessenden,  of  Maine,  and 
Johnson,  of  Maryland,  participated.  "  il/c.  Dooliltlc  —  He  (Mr.  Sumner)  has 
insisted  that  the  constitutional  amendment  could  not  be  submitted  to  the 
States  of  the  South,  because  he  has  always  consistently  maintained  that 
there  were  no  States  there  to  submit  it  to.  Mr.  Sumner. — Not  precisely. 
No  State  governments.  Mr.  Doolittle.  —  No  legislatures.  3fr.  SiuiDter. — No 
valid  legislatures."     Cong.  Globe,  p.  192. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  277 

Mr.  Boutwell's  Statement  of  State-suicide. 

Ill  a  debate  in  the  House  of  Representatives,  Feb.  16, 
1864,  Mr.  Boutwell  said  :  ^  — 

"  If  the  gentleman  ask  me  whether  there  be  the  right  in  this 
country  ^  to  prevent  the  people  of  Arkansas  going  out  of  the 
Union  ?  I  say,  Yes  :  but  if  he  asks  me  whether  there  be  any  con- 
stitutional power  by  which  we  can  prevent  the  people  of  Arkansas 
from  declaring  that  their  State  organization  has  ceased  to  exist?  I 
say,  No.  That  is  a  matter  within  their  own  control,  as  a  fact ; 
and  you  cannot  escape  from  a  fact,  whatever  your  reasons  and 
theories  may  be.  By  the  voice  of  the  people  of  Arkansas,  their 
State  organization  has  ceased  to  exist.^  What  remains  ?  The  juris- 
diction of  the  general  government  under  the  Constitution  over  the 
territory  of  Arkansas  exists  unimpaired,  exactly  as  it  was  before  this 
so-called  ordinance  of  secession  was  passed !  What  more  remains  ? 
Jurisdiction  and  sovereignty  over  the  people  of  the  State  of  Arkan- 
sas, neither  more  nor  less  than  it  was  before  the  act  of  secession  was 
passed.*  What  is  the  condition  of  the  people  ?  Speaking  legally 
and  also  as  a  matter  of  fact,^  they  have  just  those  rights  which  they 
can  enjoy  without  a  State  organization.  Of  what  are  they  deprived  ? 
Of  those  privileges  under  the  Constitution  which  can  be  enjoyed 
only  through  a  State  organization."  ® 

1  Cong.  Globe,  1st  Sess.  38th  Cong.  p.  683. 

2  The  answer  to  the  question,  what  "  this  country  "  had  a  right  to  do, 
depends  on  the  question  what  "  this  country  "  then  was. 

>*  Their  voice -had  declared  only  the  intention  that  the  State  should  no 
longer  be  one  of  the  United  States.  Mr.  Boutwell  had  not  shown  how  this 
was  "  declaring  that  their  State  organization  had  ceased  to  exist." 

*  This  is  a  material  inconsistency.  To  say  that  the  State  ceased  to  be  a 
State  and  became  a  territory  of  the  United  States,  is  to  say  that  the  per- 
sons possessing  jurisdiction  and  sovereignty  have  been  changed.  The 
sovereignty  itself  is  indeed  neither  more  nor  less,  and  it  was  always  vested 
in  the  States  united.  But  the  jurisdiction  of  the  general  government  over 
the  territory  was  entirely  changed,  becoming  exclusive. 

^  It  is  speaking  politicalli/,  that  is,  about  a  fact,  and  therefore  not  "speak- 
ing legally." 

*>  This  shows  that  Mr.  Boutwell  regarded  the  termination  of  State  ex- 
istence as  following,  by  operation  of  law,  on  "  the  declaration  "  of  the  people 
of  Arkansas ;  as  if  the  organization  of  a  State  was  like  that  of  a  municipal 
corporation  under  a  charter.  In  my  view,  the  "  privileges  "  of  a  State  were 
not  "  under  "  the  Constitution  at  all.  If  the  "  privileges  "  of  the  States  in 
union  did  not  pre-exist,  there  was  nothing  to  make  the  Constitution  law  for 
anybody. 


278  THE   RECONSTRUCTION   LEGISLATION. 

Theory  of  Ideas  acting  as  Law. 

It  will  be  observed  that  I  have  not  accepted  any  argu- 
ment which  may  be  detected  in  the  propositions  here  cited 
from  Mr.  Sumner's  and  Mr.  Boutwell's  remarks ;  and  to 
avoid  as  much  as  possible  the  liability  to  be  misunderstood, 
I  desire  to  point  out  how  entirely  distinct  the  political  con- 
clusion as  to  State-lapse,  which  is  founded  on  the  original 
investiture  of  sovereignty  in  States  united,  is  from  any 
founded  on  ideas  of  political  justice,  assumed  to  have  the 
force  of  law  independently  of  all  connection  with  the  known 
will  of  a  visible  possessor  of  sovereign  power.^ 

The  State-suicide  argument,  as  it  has  been  commonly 
presented,  was  dependent  on  the  assumption  not  only  that 
the  Constitution  was  a  law  acting  on.  the  States,  but  that, 
as  law,  it  comprehended  those  ideas  of  right  and  wrong 
which  those  who  supported  that  conclusion  approved,  as 
private  individuals.^     It  was  on  account  of  the  motive  to 

1  "They  who  orginate  and  enforce  ideas  decide  in  a  large  measure  what 
tlie  government  shall  be  and  what  it  shall  do,  although  the  work  of  govern- 
ing is  usually  in  the  liands  of  others.  But  it  is  not  wise  to  deny  the  force 
of  ideas,  and  it  is  the  necessity  and  duty  of  the  statesman  to  accept  and 
reject  ideas  in  preparing  himself  generally,  and  in  special  cases  often,  for 
the  duties  of  his  position.  .  .  .  The  idea  of  liberty  and  equality,  to  which 
Mr.  Lincoln  was  pledged,  demanded  the  immediate  and  unconditional  eman- 
cipation of  all  tlie  slaves  in  the  United  States.  ...  As  the  waste  and  hor- 
rors of  war  increased,  the  number  of  those  who  thought  that  States  could 
engage  in  an  attempt  to  overthrow  the  Constitution,  without  losing  any  of 
their  rights  under  it,  gradually  diminished.  Finally,  the  idea  in  its  fulness 
could  be  accepted  and  enforced."  —  North  Am.  Kev.,  Dec.  1879,  p.  543,  ar- 
ticle "  Young  Men  in  Politics,"  by  Mr.  G.  S.  Boutwell. 

2  This  assumption  was  equally  acceptable  to  some  who  based  the  recon- 
struction legislation  on  tlie  guaranty  clause.  {Ante,  p.  2(30.)  It  has  been  com- 
monly attempted  to  veil  its  purely  arbitrary  character  under  anotlier  equally 
arbitrary  assumption  ;  that  is,  that  the  words  of  the  Declaration  of  the  Inde- 
pendence of  the  colonies  are  not  to  be  read  as  the  proclamation  of  a  political 
purpose  merely,  but  as  having  the  force  of  a  statute  law  or  bill  of  rights, 
and  that  the  introductory  propositions  are  to  be  taken  as  the  legal  founda- 
tion for  ail  private  relations,  to  be  received  by  the  States  as  if  they  held 
their  existence  under  some  law  contained  in  the  same  document.  For  illus- 
tration see  Senator  Howe's  speech  on  his  resolution  of  Jan.  10,  1866 ;  Wil- 
son's Hist.  pp.  25,  30  ;  Cong.  Globe,  1st  Sess.  3'Jth  Cong.  p.  163.  Also,  the 
citation  from  Mr.  J.  K.  Lowell,  ante,  p.  271. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  279 

The  political  Motive  is  immaterial. 

support  slavery  that  the  action  of  the  Southern  States  was 
censurable,  or  at  least  wicked  enough  to  draw  down  ex- 
tinction of  political  existence.  This,  in  fact,  was  the  basis 
of  Mr.  Sumner's  and  Mr.  Boutwell's  argument  for  their 
coroner's  verdict  of  State-suicide. 

The  political  consequences  of  a  clearly  expressed  intent 
on  the  part  of  the  people  of  a  State  to  separate  from  the 
other  States,  as  I  have  presented  them,  follow  without  ref- 
erence to  the  moral  character  of  the  considerations  indu- 
cing the  political  act.  Whether  some  States  are  necessarily 
superior  to  others  in  the  faculty  of  conceiving  moral  ideas 
is  immaterial.  None  can  claim  an  exemption  from  the  con- 
ditions of  their  political  existence.  The  consequences  of 
attempting  separation  follow,  when  the  purpose  of  the 
State  is  to  sustain  human  rights  and  republican  forms  of 
government,  as  when  it  is  to  sustain  slavery  and  anti-repub- 
lican institutions  ;  whatever  may  be  the  standard  of  human 
rights  and  of  republican  government.^ 

The  inconsistencies  in  each  of  the  different  views  offered 
on  the  reconstruction  question  were  fully  enough  exposed, 
at  the  time  of  their  discussion,  by  opponents  severally  ad- 
vocating positions  equally  inconsistent. 

But  to  cover  up  these  contradictions,  or  speaking  more 
charitably  and  perhaps  also  more  truthfully,  to  hide  them 
from  their  own  consciousness,  those  who  succeeded  in  lead- 
ing  the  policy  of  Congress  at  this  crisis  resorted  to  fictions 
like  those  called  "legal  fictions  "  in  the  common  law. 

Of  these  the  principal  one  was  that  these  ten  States  had, 
by  their  own  act,  without  any  external  coercion  as  of  a 

I  Judge  Parker,  in  the  lecture  on  Revolution  and  Reconstruction  {ante, 
p.  260,  n.),  p.  20,  says :  "  We  may  here  see  the  utter  folly  of  the  position 
that  a  State,  attempting  to  secede,  thereby  becomes /e/o-c?e-se  and  a  territory. 
Suppose  Massachusetts  had  withdrawn  from  the  Confederation,  into  what 
condition  would  she  have  fallen  territorially  ?  This  is  a  fair  test."  Perhaps 
Mr.  Sumner  would  have  made  a  distinction.  But  I  should  say  that  what 
was  sauce  for  South  Carolina  would  be  sauce  for  Massachusetts. 


280  THE   EECONSTEUCTION  LEGISLATION. 

Effect  of  not  taking  the  Oath  to  support  the  Constitution. 

conqueror,  though  without  any  intention  on  their  parts, 
deprived  themselves  of  their  own  governments  ;  that  is,  of 
those  governments  which  are  State  governments  because 
the  States,  or  the  political  people  of  those  States,  have  in- 
stituted them  or  caused  them  to  exist. 

It  may  be  conjectured  that  many  persons  have  regarded 
this  as  a  legal  consequence  from  the  provision  in  Article 
VI.  of  the  Constitution :  "  The  members  of  the  several 
State  legislatures  and  all  executive  and  judicial  officers, 
both  of  the  United  States  and  of  the  several  States,  shall 
be  bound  by  oath  or  affirmation  to  support  this  Constitu- 
tion." 

It  may  be  argued  that,  unless  the  persons  who  may  as- 
sume the  functions  of  the  State  governments  do  actually 
so  bind  themselves  by  oath  or  affirmation,  they  will  not  be 
invested  with  those  functions  ;  so  that,  if  all  so  omit  to  do 
this,  there  will  be  nobody  to  be  a  government.^  In  point 
of  law,  the  State  officials  are  none  the  less  bound  to  sup- 
port the  Constitution,  though  omitting  to  take  such  oath,  or 
affirmation.  The  obligations  of  the  citizen  to  respect  and 
obey  the  laws  are  not  dependent  on  his  own  choice.  But, 
admitting  the  conclusion  against  the  existence  of  a  State 
government,  the  question  is.  What  political  power  or  duty 
devolves  upon  the  general  government  in  the  premises  ? 

It  would  be  contradictory  action  on  the  part  of  such  per- 
sons, so  assuming  the  functions  of  a  State  government 
without  regarding  this  provision,  to  undertake  to  join  in 
the  election  of  a  President  of  the  United  States,  or  to  send 
senators  and  representatives  to  Congress.  But  supposing 
that  this  should  be  attempted,  it  is  clear  tliat  it  would  be 
for  Congress,  in  judging  of  the  qualifications  of  its  several 
members,  on  legal  proof  of  the  facts,  to  reject  the  claim  of 
such  persons.  Again,  if  the  acts  of  such  persons  assuming 
State  functions  within  the  State  are  made  the  foundation 

'  As  in  Mr.  C.  G.  Loring's  pamphlet  on  Reconstruction,  p.  33. 


THEORY   OF  OUB  NATIONAL  EXISTENCE.  281 

Words  as  supplying  tlie  Want  of  Ideas. 

of  legal  claim  to  rights  and  obligations,  they  would,  on 
legal  proof  of  the  facts,  be  regarded  as  null  in  courts  of  the 
United  States. 

But  whether  any  political  action  can  be  taken  in  the 
case  by  any  department  of  the  general  government  is  a 
matter  for  which  no  provision  is  found  in  the  Constitution, 
as  law.  If  "  the  political  department,"  whatever  that  may 
be,  can  take  any  coercive  measures  in  the  premises,  it  must 
be  on  the  foundation  of  a  State-lapse,^  either  as  herein 
maintained  or  on  some  other  ground. 

Von  Hoist,  in  his  work  on  the  American  Constitution,  vol. 
i.,  p.  15,  quotes  some  German,  saying,  "  Wo  die  Begriffe 
fehlen,  da  stellt  zu  rechter  Zeit  ein  Wort  sicli  ein,"  which 
may  be  translated,  "Where  definite  conceptions  are  want- 
ing, there,  a  word  opportunely  introduced  may  supply  the 
place."  At  the  close  of  the  war,  none  of  those  whose  fortune 
it  was  to  direct  the  action  of  the  government  had  any  defi- 
nite conception  of  the  actual  person  holding  that  sovereign 
power  which  had  just  been  vindicated  against  a  rebellion  ; 
and  so,  nwrds,  like  "  disorganized  States,"  "  States  deprived 
of  their  governments,"  "  States  out  of  their  practical  rela- 
tions to  the  government,"  stepped  in  and  carried  the  day. 

The  political  transaction  indicated  in  these  phrases  was 
supposed  to  have  occurred  at  the  very  time  when  the  func- 
tions of  the  State  governments  had,  as  a  fact,  continued  to 
be  exercised,  and  that  too  with  a  strong  hand,  during  the 
war,  and  when  the  parties  exercising  such  functions  as  the 
State  governments  had  been  recognized  as  belligerents  by 
the  government  of  the  United  States,  and,  for  a  long  period, 
and  even  to  the  very  date  of  this  congressional  reconstruc- 
tion, had  been  invited  to  ratify,  as  if  by  their  free  consent, 
two  articles  of   amendment   to    the    Constitution   of  the 

1  This  appears  to  have  been  Senator  Howe's  position  in  remarks  suppor^ 
ing  his  resolution  offered  Jan.  10,  1866.  Cong.  Globe,  1st  Sess.  39th  Cong, 
p.  164. 


282  THE   RECONSTRUCTION   LEGISLATION. 

The  Question  is  not  one  of  Law, 

United  States,  and  while  the  Supreme  Court  was  daily 
sustaining  the  action  of  such  governments  in  their  several 
departments  as  the  foundation  of  legal  relations.^ 

The  only  basis  'for  the  actual  reconstruction  measures  of 
Congress  being  either  the  theory  of  conquest  or  of  State- 
lapse,  those  measures  were  an  assertion  that,  within  the 
limits  of  the  ten  States  of  the  former  Confederacy,  there 
was  no  political  people  participating  in  that  sovereignty 
which,  as  a  unit,  is  held  b}^  the  United  States,  as  recognized 
by  other  nations,  and  which  gave  to  the  written  Constitu- 
tion the  authority  of  law  within  those  ten  States,  as  within 
every  portion  of  the  national  domain. 

As  a  consequence,  no  one  of  these  States  had  the  capa- 
city to  adopt  an  amendment  to  the  Constitution,  as  a  State 
to  be  counted  in  estimating  the  requisite  three  fourths. 
Those  adopted  since  the  close  of  the  war  were  in  fact 
adopted  by  the  authority  of  the  States  choosing  to  continue 
in  that  Union  in  which  only  they  had  had  independent  po- 
litical existence. 

The  ten  States  were  literally  to  be  reconstructed ;  or, 
more  pointedly,  new  States  were  to  be  constructed  in  their 
places,  which  could  come  into  being  only  as  the  majority 
of  the  individuals  composing  each  new  political  people 
should  accept  the  amendments  as  part  of  an  existing  con- 
stitution ;  as  do  the  political  people  of  a  Territory  wdiich 
has  never  been  known  as  a  State. 

The  question  presented  by  the  circumstances  of  that 
time,  being  outside  the  domain  of  all  law,  was  of  necessity 
outside  the  domain  of  the  Constitution,  as  law  ;  and  there- 
fore it  was  a  question  which  could  not  be  settled  by  the 
Supreme  Court.^ 

1  Ante,  p.  7. 

2  This  was  also  the  proper  answer  to  tlie  supfiestion  made  by  Senator  Doo- 
little,  of  Wisconsin,  and  others,  Dec.  12,  18(i5,  wlien  tiie  joint  committee  on 
these  matters  was  first  proposed,  that  tiie  question  of  reconstruction  sliould 
be  referred  to  tlie  judiciary  committee.  Wilson's  Hist.  p.  18.  Cong.  Globe, 
Ist  Sess.  39tli  Cong.  p.  25. 


THEORY  OF  OUR   NATIONAL  EXISTENCE.  283 

Mr.  Reverdy  Johnson's  Argument. 

During  the  discussion  in  the  Senate  of"  those  clauses  of 
the  fifth  section  of  the  Act  of  March  2, 1867,  which  related 
to  the  adoption  of  the  fourteenth  article  of  amendments 
by  the  States  named  in  the  bill,  Feb.  15,  1867,  Mr.  Sum- 
ner proposed  to  designate  plainly  that  the  article  would 
be  in  force  when  adopted  by  the  proper  proportion  of  the 
States  then  represented  in  Congress  ;  that  is,  excluding  the 
ten  States  from  the  whole  number.     Cong.  Globe,  p.  1393. 

On  this  point  Mr.  Reverdy  Johnson  remarked,  "  When 
will  the  Constitution  be  amended  by  the  ratification  of 
three  fourths  of  the  States  that  are  represented  ?  Who  is 
to  decide  that?  That  is  an  open  question,  and  must  be  an 
open  question  just  as  much  after  you  have  declared  that  it 
is  to  be  a  part  of  the  Constitution  when  ratified  by  three 
fourths  as  if  you  leave  it  blank.  If,  in  point  of  law,i  the 
States  that  are  now  represented  are  the  States  to  whom  is 
to  be  referred,  and  by  whom  is  to  be  ratified,  the  constitu- 
tional amendment  proposed  by  Congress,  then  the  Consti- 
tution of  the  United  States  will  be  altered  in  that  respect ; 
but  if  it  is  to  be  submitted  to  more  than  the  States  that 
are  represented  in  Congress,  that  is  to  say,  to  all  the  States, 
the  question  will  be  open  whether  Congress  declares  it  or 
not,  and  that  is  a  question  of  constitutional  law  which 
Congress  cannot  decide  by  any  declaration.  It  may  go 
for  what  it  is  worth,  that  in  the  opinion  of  Congress  (if 
that  should  be  the  action  of  Congress),  the  Constitution 
may  be  amended  by  the  ratification  of  three  fourths  of  the 
represented  States  ;  but  whenever  the  question  arises  be- 
fore the  judiciary  it  will  be  governed  by  other  considera- 
tions.    It  must  be  governed  by  what  is  the  meaning  of  the 

1  The  question,  What  are  the  States  of  the  Union,  and  what  are  not  ? 
must  always  have  been  of  the  same  nature,  at  the  first  day  that  there  were 
United  States,  as  at  any  time  afterward.  If  the  Supreme  Court  could  deter- 
mine, at  any  time  after  1861,  how  many  States  composed  the  Union,  as 
matter  of  law,  it  might  have  decided  at  the  beginning  whether  there  were 
thirteen  or  a  greater  or  a  less  number. 


284  THE  RECONSTRUCTION   LEGISLATION. 

The  political  Fact  left  in  Doubt. 

Constitution  in  that  particular,  and  be  governed  by  what 
the  courts  shall  decide  is  the  condition  of  the  States  that 
are  not  represented.  If  the  courts  shall  be  of  opinion  that 
the  States  which  are  not  represented  in  Congress,  are  still 
States,  then  they  will  certainly  decide  that  a  ratification 
by  three  fourths  only  of  the  States  that  are  represented 
wall  not  make  a  change  in  the  Constitution."  Cong.  Globe, 
p.  1393.1 

The  possession  of  sovereignty  can  only  be  known  by  its 
successful  assertion.  Anybody  maj^,  in  words  or  by  force, 
dispute  any  such  assertion,  taking  the  risk  of  being  dealt 
with  as  a  traitor  under  a  law  resting  on  that  successful 
assertion.  Courts  of  law  must  of  necessity  profess  to 
carry  out  the  will  of  some  one  or  more  persons  who  have, 
as  matter  of  fact,  successfully  asserted  the  possession  of 
sovereignty  over  certain  territory. 

The  question  in  this  instance  is.  Whom  does  the  Su- 
preme Court  recognize  as  the  persons  who,  having  asserted 
that  they  held  or  exercised  sovereign  power  in  the  domain 
known  to  the  w^orld  as  that  of  the  United  States,  proved 
it  by  actually  exercising  it  ? 

Will  the  Court  recognize  among  those  who  succeeded 
in  their  assertion  of  the  possession  of  sovereign  power  in 
the  domain  of  the  United  States  any  who  said  of  them- 
selves that  they  were  not  among  those  States  ? 

The  principal  defect  in  the  actual  reconstruction  meas- 
ures has  been  that  the  political  truth  which  sustains  the 
action  of  Congress  has  been  obscured  by  its  legislative  lan- 
guage ;  when  it  might  have  been  manifested,  both  by 
word  and  action,  by  instituting  territorial  governments  in 
the  places  of  these  ten  States,  or  by  organizing  and  admit- 
ting a  new  State  out  of  contiguous  portions  of  those  former 

1  These  remarks,  by  one  of  the  ablest  lawyers  in  the  country,  afford 
another  illustration  of  the  fatal  defect  of  looking  at  the  political  question 
from  the  lawyer's  point  of  view. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  285 

The  present  Question  of  Allegiance. 

States,  to  be  a  visible  memorial  of  the  political  fact  on 
which  the  Constitution  had  always,  as  law,  rested,  —  that, 
except  in  voluntary  union  with  the  other  States,  there  is 
no  such  thing  as  a  State  of  the  United  States.^ 

But  it  is  the  fact  of  to-day  which  concerns  us  of  to-day. 
The  question  of  allegiance  is  always  one  of  existing  fact, 
not  of  past  fact.  History,  even  the  history  of  the  war 
closed  in  1865,  is  of  no  importance  in  this  respect  except 
as  it  is  identified  with  to-day's  life.  It  is  not  a  question  of 
theory,  doctrine,  or  natural  right.  He,  she,  or  they,  whom 
the  inhabitants  of  a  country  do  to-day  regard  as  their  sov- 
ereign, 18  or  are  their  sovereign.  The  historical  question, 
Whom  did  they  so  regard  yesterday  ?  is  material  only  as 
yesterday  and  to-day  are  one  epoch :  and,  in  this  light, 
history  generally  seems  to  give  the  answer. 

Whatever  may  be  the  truth  as  to  the  facts  of  a  century 
ago,  it  is  not  of  the  slightest  importance  as  compared  with 
testimony  on  the  question  of  present  fact, —  Where  do  the 
inhabitants  of  this  country  to-day  find  the  majestas  legihus 
soluta,  their  ultimate  sovereign,  whose  right  of  dominion 
may  call  them  personall}^  to  hazard  their  lives  and  fortunes 
in  war  against  all  who  would  resist  it  ? 

I  have  not  in  these  pages  proposed  a  theory^  to  settle 
what  can  onl}"  be  a  question  of  fact. 

If  the  Southern  States  continued  throughout  the  war  to 
be,  politically,  what  they  had  been,  and,  as  such,  were  the 
pa,rties  belligerent  against  the  government  as  representing 

1  As  was  done,  in  part,  by  forming  West  Virginia  as  a  State.  Dr.  Brown- 
son,  in  denying  tlie  power  of  Congress  to  deal  so  witli  the  territory  and 
population  (Am.  RepubHc,  317-319),  is,  I  think,  inconsistent  with  his  own 
doctrine  of  State-lapse.  It  would  appear  that  some  members  of  Congress 
■would  have  approved  of  instituting  territorial  governments,  but  for  theii 
distrust  of  the  President's  exercise  of  the  appointing  power,  as  Mr.  Law- 
rence, of  Ohio.  Cong.  Globe,  2d  Sess.  39th  Cong.  p.  1083.  But,  if  one 
branch  of  the  government  has  exceeded  its  powers  because  it  distrusted  a 
co-ordinate  branch,  all  that  can  be  said  is  that  the  Constitution  has  proved  a 
failure. 

^  Compare  ante,  p.  98. 


286  THE   RECONSTRUCTION   LEGISLATION. 

The  Question  for  To-day. 

another  belligerent ;  or,  which  is  the  same,  —  and  for  the 
present  question  even  more  material,  —  if  the  general  public, 
North  as  well  as  South,  and  those  who  in  public  station 
represent  the  political  people  of  all  the  States,  North  as 
well  as  South,  say  that  it  was  so,  and  that  the  eleven 
States  were,  as  such,  defeated  on  "  wager  of  battle,"  as 
one  belligerent  in  a  war  between  Russia  and  Turke}',  or 
France  and  Germany,  may  be  defeated  by  the  other,  and 
that  they  are  still  united  with  the  other  States  because  so 
defeated,  —  then  the  capacity  on  the  part  of  each  State 
to  compel  the  obedience  of  its  citizens  in  supporting  a 
secession  has,  as  a  political  fact,  been  established. 

But  this  capacity  on  the  part  of  a  State  makes  the 
attempted  secession  the  exercise  of  a  right  which  can  only 
be  controverted  as  a  sovereign  right;  which  is  nothing  else 
than  "the  right  of  peaceable  secession"  ("peaceable,"  — 
that  is,  as  any  sovereign  right  is  peaceable  ;  except  as 
contested  by  international  war),  which  was  demanded  by 
the  Southern  doctrine  of  State  sovereignty :  ^  and  so  the 
doctrine  of  secession,  as  the  affirmation  of  the  political 
right,  has  been  established,  while  the  exercise  of  the  right 
has,  as  a  political  fact,  been  successfully  resisted. 

But  if  this  was  the  true  state  of  the  case  at  the  end  of 
the  war,  the  practical  question  still  arises,  Is  the  political 
Constitution  of  the  country  the  same  to-day  ? 

1  Ante,  p.  88. 


THEORY   or   OUR   NATIONAL   EXISTENCE.  287 

A  Question  viewed  as  an  Abstraction. 


CHAPTER  VII. 

Popular  Dislike  of  Abstract  Conceptions.  —  Their  Necessity  in 
Political  Discussion.  —  The  Indivisibility  of  Sovereignty. — 
The  Sovereignty  of  the  Political  People  distinguished  from 
Popular  Sovereignty. —  Question  of  a  Revolutionary  Change 
founded  on  Popular  Sovereignty.  —  Of  the  Position  of  the 
Judiciary  in  Reference  to  such  Question. 

On  the  11th  of  April,  after  the  evacuation  of  Petersburg 
and  Richmond  and  the  surrender  of  the  Army  of  Northern 
Virginia,  Mr,  Lincoln  received,  informally,  a  number  of 
citizens  before  the  presidential  mansion,  and  addressed  to 
his  visitors  some  remarks,  the  last  public  expression  of  his 
views,  ^  commencing,  "  We  meet  this  evening,  not  in 
sorrow  but  in  gladness  of  heart." 

The  principal  subject  of  the  address  was  "  the  re-inaug- 
uration of  the  national  authority  ;  reconstruction  ;"  partic- 
ularly as  a  question  presented  at  that  moment  by  the 
political  condition  of  Louisiana. 

In  the  course  of  this  address,  Mr.  Lincoln  said :  — 

*'  I  have  been  shown  a  letter  on  this  subject,  supposed  to  be  an 
able  one,^  in  which  the  writer  expresses  regret  that  my  mind  has 
not  seemed  to  be  definitely  fixed  on  the  question  whether  the 
seceded  States,  so-called,  are  in  the  Union  or  out  of  it.  It  would, 
perhaps,  add  astonishment  to  his  regret  were  he  to  learn  that,  since 
I  have  found  professed  Union  men  endeavoring  to  make  that  ques- 
tion, I  hav^e  purposely  forborne  any  public  expression  upon  it.  As 
appears  to  me,  that  question  has  not  been,  nor  yet  is  a  practically 
material  one,  and  that  any  discussion  of  it,  while  it  thus  remains 
practically  immaterial,  could   have  no   effect  other  than  the  mis- 

1  Mr.  Lincoln's  assassination  was  on  the  14th  of  the  same  month. 

2  I  have  not  been  able  to  learn  anything  respecting  the  letter  referred  to. 


288  VALUE  OF  ABSTRACT  IDEAS. 

Mr.  Lincoln's  Expression. 

chievous  one  of  dividing  our  friends.  As  yet,  whatever  it  may 
liereafter  become,  that  question  is  bad  as  the  basis  of  a  controversy, 
and  good  for  nothing  at  all,  —  a  merely  pernicious  abstraction.  We 
all  agree  that  the  seceded  States,  so-called,  are  out  of  their  proper 
practical  relation  with  the  Union,  and  that  the  sole  object  of  the 
Government,  civil  and  military,  in  regard  to  those  States,  is  to  get 
them  into  that  proper  practical  relation.  I  believe  it  is  not  only 
possible,  but  in  fact  easier  to  do  this  without  deciding,  or  even  con- 
sidering, whether  these  States  have  ever  been  out  of  the  Union, 
than  with  ^  it.  Finding  themselves  safely  at  home,  it  would  be 
utterly  immaterial  whether  they  had  ever  been  abroad.  Let  us  all 
join  in  doing  the  acts  necessary  to  restoring  the  proper  practical 
relations  between  these  States  and  the  Union,  and  each  forever 
after  innocently  indulge  his  own  opinion  whether,  in  doing  the  acts, 
he  brought  the  States  from  without  into  the  Union,  or  only  gave 
them  proper  assistance,  they  never  having  been  out  of  it."  ^ 

It  was  shown  by  Mr.  Lincoln's  language  on  this  and  on 
other  occasions^  that  he  had  accepted  the  continued  exist- 
ence of  the  compromised  States,  and  seemed  to  have  as- 
sumed that  it  was  competent  for  the  executive  to  negotiate 
for  the  restoration  of  their  "  proper  practical  relations," 
taking  the  "  lo3'al "  inhabitants  of  each  as  corporately 
possessed  of  the  functions  and  capacities  of  the  State.* 

But  a  question  of  his  power  to  undertake  this  would  be 
suggested  either  by  the  conservative  view,  by  which  they 
were  spoken  of  as  in,  or  by  the  State-suicide  view,  by 
which  they  were  spoken  of  as  otit.  It  was,  apparently,  in 
this  effect  that  the  "  question  "  presented  itself  to  his  mind 
as  "  pernicious." 

Whether  the  term  "  pernicious  abstraction  "  was  original 

1  Sic,  but  probably  should  be  "  within." 

2  Maoplicrson's  Pol.  Hist.,  p.  609. 

8  See  Message,  Dec.  8,  1863.     Ante,  pp.  35,  36. 

*  It  is  very  likely  that  both  Mr.  Lincoln  and  Mr.  Johnson  had  a  general 
notion  that  the  diplomatic  functions  of  the  Government,  as  exercised  by  the 
executive  in  intercourse  with  foreign  nations,  would  be  the  proi)er  ma- 
chinery for  the  prospective  transaction  of  restoring  the  eleven  States  to 
their  "  proper  practical  relations  between  themselves  and  the  Union,"  what- 
ever that  might  be. 


THEORY   OF   OUR    NATIONAL  EXISTENCE.  289 

Expressions  similar  to  Mr.  Lincoln's. 

or  not  with  Mr.  Lincoln,  it  seems  to  have  been  a  taking 
one,  judging  from  its  repetition  by  others. 

At  a  later  period,  when  a  majority  in  Congress  were 
about  to  assume  the  control  of  the  same  subject,  on  a  basis 
nominally  similar  to  that  accepted  by  Mr.  Lincoln  and  by 
Mr.  Johnson,  that  is,  that  these  States  were  deprived  of 
civil  government,  it  was  the  legislature  which  treated  the 
same  "question"  with  contempt.  The  majority  of  the 
Committee  on  Reconstruction  did  "  not  deem  it  necessary 
or  proper  to  discuss  the  question  whether  the  Confederate 
States  are  still  States  of  this  Union  or  can  ever  be  other- 
wise. Granting  (they  say)  this  profitless  abstraction,  about 
which  so  many  words  have  been  wasted,"  etc.^ 

Considering  that  the  theories  of  conquest  and  of  State- 
suicide  are,  apparently,  insisted  upon  in  almost  alternate 
sentences  in  the  same  report,  the  committee's  idea  of  wast- 
ing words  over  abstractions  seems  somewhat  obscure.^  But 
the  conclusion  intended  evidently  was  that  any  affirmation 
of  State  existence  or  non-existence,  which  would  remove 
the  subject  from  its  exclusive  jurisdiction,  was  as  "  profit- 
less "  for  Congress  as  any  could  have  been  "  pernicious  " 
which  obstructed  Mr.  Lincoln's  efforts.^ 

1  Ante,  p.  43  {d\.  The  minority  of  the  committee,  in  their  report,  very 
naturally  took  issue  as  to  this  expression,  saying,  "  In  our  judgment,  so 
far  from  this  being  a  '  profitless  abstraction,'  it  is  a  vital  inquiry." 

2  Ante,  pp.  42-47. 

3  In  the  essay  already  mentioned  (ante,  p.  260),  Mr.  C.  G.  Loring  says  (p. 
38),  "  The  issue  whether  the  States  were  to  be  accounted  as  in  or  out  of 
the  Union,  —  the  question  in  that  form  is  something  worse  than  a  mere 
profitless  abstraction  ;  it  is  a  pernicious  play  upon  words."  Mr.  J.  R. 
Lowell,  in  the  North  American  Review  for  April,  1866  [ante,  p.  260),  says 
(p.  540),  "It  seems  to  us  the  idlest  of  all  possible  abstractions  now  to  discuss 
the  question  whether  the  rebellious  States  were  ever  out  of  the  Union  or  not, 
as  if  that  settled  the  right  of  secession."  Mr.  Wilson,  in  his  History  of  Re- 
construction, p.  115,  states,  "I  have  said  that  time  was  wasted  in  disputing 
whether  these  States  were  in  or  out  of  the  Union."  This  language  is  more 
remarkable  from  a  senator  who,  at  one  time  at  least,  said  that  amendments 
to  the  Constitution  might  be  adopted  without  counting  the  ten  States.  (Ante, 
p.  260.)     Mr.  Thaddeus  Stevens's  remarks,  cited  ante,  p.  227,  n.,  indicate  a 


290  VALUE   OF  ABSTRACT   IDEAS. 

Popular  Distrust  of  Abstractions. 

It  may  be  thought,  however,  that  the  Supreme  Court 
has  not  equally  slighted  the  question  ;  having,  in  the  lead- 
ing eases  herein  cited,  so  positively  affirmed  that  the  com- 
promised States  were  always  States  in  the  Union. ^  But 
what  it  is  to  be  a  State  of  the  Union  in  view  of  what  had 
transpired,  the  Court  has  very  partially  defined.  It  may 
have  declared  that  these  States  are  to  be  deemed  to  have 
existed,  so  far  as  the  relations  of  civil  life  are  concerned ; 
but  what  it  is  to  be  in  the  Union  politically,  it  has  left  to 
be  settled  by  a  "  political  department,"  which,  whether 
executive  or  legislative,  has  pronounced  the  question  an 
"  abstraction,"  either  "  pernicious  "  or  "  profitless." 

It  may  be  that  in  so  accepting  the  action  of  "  the  political 
department "  the  Court  intended  to  recognize  the  recon- 
struction legislation  of  Congress  as  the  execution  of  the 
guaranty  of  a  republican  form  of  government  to  a  State? 
But  if  the  action  of  Congress  in  this  instance  has  not  been 
distinguished  from  its  action  in  organizing  a  State  from 
a  Territory,  the  question  whether, the  eleven  States  had 
continued  States  of  the  Union  has  been  ignored  by  the  judi- 
ciary, accepting  the  transaction  without  an  attempt  at 
explanation  or  justification,  as  completely  as  it  was  ignored 
by  the  executive  and  legislative  departments. 

Aside  from  all  estimates  of  the  correctness  of  any  view 
on  this  subject  which  Mr.  Lincoln  may  have  taken,  his  use, 
in  this  connection,  of  the  word  "  abstraction  "  illustrates 
his  political  sagacity,  at  least ;  or  rather,  perhaps,  his  un- 
conscious sympathy  with  popular  methods  of  thinking  on 
political  matters.  But,  if  this  is  the  case,  it  at  the  same 
time  betrays  one  of  the  most  constant  hindrances  in  all 
discussion  of  American  political  questions.     Abstractions 

similar  indifference  to  the  question,  equalled,  however,  by  that  shown  by 
Mr.  Alexander  II.  Stephens,  when  taking  a  somewhat  different  view  of  the 
situation.     [Ante,  p.  280.) 

1  Ante,  pp.  12,  21,  25. 

2  Ante,  pp.  14,  30,  236,  249. 


THEORY   OF   OTJR   NATIONAL   EXISTENCE.  291 

The  Indivisibility  of  Sovereignty. 

are  more  practically  in  use  with  us  than  with  any  other 
political  community.^  More  words  correspondent  to  ab- 
stract ideas  are  required  for  our  political  discussions  than 
for  those  of  any  other  political  society.  It  is  mainly 
owing  to  our  unwillingness  to  recognize  this,  and  to  de- 
mand a  definite  use  of  words  adequate  to  distinguish 
our  various  political  conceptions,  that  phrases  of  vague 
and  doubtful  meaning  are  so  copiously  employed  in  public 
discussions. 

The  words, "  the  country,"  "the  nation,"  "the  peo- 
ple," "  the  State,"  "  the  Union,"  "  the  Constitution," 
"  the  Government,"  "  sovereignty,"  "  subject,"  "  alle- 
giance," "  loyalty,"  "  law,"  "  right,"  "freedom,"  "  slavery," 
are  each  required  to  express  abstract  ideas.  But  to  call  a 
question  an  abstraction  —  meaning,  as  far  as  that  can  mean 
anything,  that  it  is  a  question  involving  definite  concep- 
tions of  abstract  ideas  —  is  quite  enough  to  bar  all  effort 
to  reconcile  action  with  principle,  and  to  give  a  clearer  field 
for  any  measures  supposed  to  be  "  practical,"  because  the 
abstract  ideas  involved  have  been  arbitrarily  pushed  out 
of  view.2 

In  connection  with  American  constitutional  law,  the  in- 
divisibility of  sovereign  power  has  heretofore  been  asserted 
mostly  by  those  who  maintained  the  Southern  or  States- 
rights  view  5  while  the  divisibility  of  such  power,  so  far 

1  Camp's  Democracy,  Ch.  III.  It  is  when  describing  the  nature  of  the 
American  Union  that  De  Tocqueville  (Democracy  in  America,  I.,  200)  says, 
"  Tlie  human  understandhig  more  easily  invents  new  things  than  new  words, 
and  we  are  hence  constrained  to  employ  many  improper  and  inadequate 
expressions."  The  difficulty,  in  general,  is  the  subject  of  Sir  George  Corne- 
wall  Lewis's  work  on  The  Methods  of  Observation  and  Reasoning  in  Politics, 
Ch.  IV. 

2  In  the  debate  on  the  8th  February,  1867,  in  the  House  {ante,j>.  230),  Mr. 
Thayer  said,  "  Without  regard  to  any  question  of  political  casuistry  turn- 
ing upon  the  question  of  States  in  the  Union  and  States  out  of  the  Union» 
one  thing  let  gentlemen  depend  upon,  — that  the  people,  who  do  not  under- 
stand these   fine  spun  metaphysical  distinctions,  will  and   do  insist,"  etc- 


292  INDIVISIBILITY   OF   SOVEREIGNTY. 

Citation  from  an  earlier  Work. 

as  asserted  at  all,  has  been  maintained  by  writers  of  the 
opposite  school.^ 

In  the  first  volume,  published  in  1858,  of  a  work  con- 
nected with  constitutional  law  as  affectinsr  leg-al  cases 
arising  out  of  the  existence  of  negro  slaver}^  in  a  portion  of 
the  States,  I  had  traced  the  distribution  of  sovereign 
powers,  as  exhibited  in  the  political  history  of  the  country 
from  the  colonial  era  to  the  time  of  the  adoption  of  the 
Constitution.^ 

As  the  conclusion  from  that  historical  review,  I  had 
stated  2 :  — 

"  If  the  language  of  the  Constitution  does  not  base  its  authority 
upon  or  recognize  any  other  theory,  and  if,  for  aught  that  appears 
from  it  independent  of  theory,  it  may  be  merely  declaratoiy  or  con- 
stituting, not  granting,  giving,  or  conveying  (except  in  the  institu- 
tion of  a  subordinate  government),  and  if  the  facts  which  led  to  the 
actual  customary  recognition  of  the  vpritten  Constitution  do  not 
contradict  the  view,  it  may  be  justly  regarded  as  the  necessary 
and  only  doctrine  of  law,  under  the  instrument,  that  the  powers 
assigned  by  it  to  the  Government  of  the  United  States  are  equally 
original  and  sovereign  in  the  hands  of  a  political  unity  called  the 
people  of  the  United  States,  as  the  sovereign  powers,  not  so  granted 
and  not  prohibited  to  the  several  States,  are  original  in  the  posses- 
sion of  the  people  of  the  several  States ;  that  is,  the  Constitution, 
as  a  political  fact,  is  evidence  of  the  investiture  of  certain  sovereign 
national  powers  in  the  united  people  of  the  States,  antecedent  to 
the  Constitution,  as  well  as  of  the  residue  of  sovereignty  in  the  same 
people  in  their  several  condition  of  the  people  of  distinct  States.* 
It  being  here  taken  as  a  principle,  independent  of  the  Constitution, 
that  sovereignty  is  not  necessarily,  in  theory  or  practically,  con- 
centrated in  one  locality,  its  place  being  determined,  as  any  other 
fact,  by  historical  evidence." 

1  ^n/e,  p.  lOG,  n.  3. 

2  Law  of  Freedom  and  Bondage,  §§  231-235,  §§  330-346,  of  which  the 
summary  of  the  facts,  wliich  lias  been  given  in  Ch.  IV.  of  this  essay,  is 
an  abridf^ment.     (Ante,  pp.  123-135.) 

8  Ih.  §  346. 

*  Compare  ante,  p.  103,  VI. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  203 

The  Distribution  of  Sovereignty. 

The  first  lines  of  the  passage  cited  illustrate  the  liability 
to  an  error  of  expression,  arising  from  the  habitual  intru- 
sion into  our  political  thought  of  that  misconception  which 
consists  in  regarding  the  possession  of  sovereign  power  as 
a  right  which  can  be  determined  by  law  ;  or  in  imagining 
that,  in  this  country  at  least,  sovereign  powers  are  held 
under  the  written  Constitution  as  law.  The  truth  is  that, 
as  the  possession  of  sovereign  power  is  only  matter  of  fact, 
or  that  which  is  shown  by  history,  the  Constitution,  as 
historical  political  fact,  can  only  be  evidence  of  the  exer- 
cise of  such  power  ;  and  the  possession  of  sovereign  powers 
should  not  here  have  been  spoken  of  as  "  doctrine  of  law 
under  the  instrument." 

But  it  is  more  especially  in  reference  to  the  indivisihility 
of  sovereignty,  as  a  general  principle,  that  I  have  here  cited 
my  own  earlier  statement  of  the  doctrine  of  its  divisibility^ 
in  concluding  which  I  had  observed  that  "  the  place  "  of 
sovereignty  is  "  determined,  as  any  other  fact,  by  historical 
evidence." 

It  may  not  so  appear  to  others,  but  to  me  it  seems 
that,  during  the  twenty-two  years  which  have  elapsed 
since  writing  the  passage  above  given,  some  very  material 
"  historical  evidence  "  has  been  presented  on  this  precise 
question. 

The  old  writers  distinguished  the  forma  regiminis  from 
the  forma  imperii.  The  powers  of  sovereignty  have  been 
exercised  in  distribution  on  this  continent  from  the  days  of 
the  first  colonies, —  distributed.,  that  is,  in  exercise,  between 
an  imperial  and  the  colonial  governments  ;  and  afterwards 
between  a  general  or  national  or  federal  government 
and  the  State  governments.  Such  has  been  the  forma 
regiminis. 

Had  there  been  no  attempt  to  separate,  it  might  have 
seemed  that  the  sovereignty  was  actually  divided  by  the 
forma  imperii :  part  held,  as  fact  above  law,  by  the  people 


294  INDIVISIBILITY   OF   SOVEREIGNTY. 

Mr.  G.  T.  Ciirtis's  Discourse. 

of  the  States,  as  one  ;  and  part  by  the  people  of  the  States, 
severally.  To  me,  it  seems  that  a  case  like  Keith  v.  Clark 
is  a  crucial  experiment.  The  powers  held  by  the  States 
severally  cannot,  under  any  theory  of  the  Constitution,  be 
sovereign  in  any  sense  when  the  use  made  of  them  by  the 
State  governments  is  subject  to  the  judgment  of  any  de- 
partment of  another  government  holding  the  other  powers 
of  sovereignty.  If  the  power  to  establish  a  bank  belonged 
to  a  State  before  the  rebellion  ^  and  continued  to  belong 
afterwards,  it  seems  inconsistent  to  suppose  another  party 
having  a  right  to  ask  about  the  use  made  of  the  bank- 
notes. Powers  held  by  one,  over  territory  and  inhabitants, 
cannot  be  sovereign  if  they  may  not  be  exercised  without 
reference  to  other  powers  held  by  another  over  the  same 
territory  and  inhabitants. 

On  the  invitation  of  the  New  York  Society  for  the  Ad- 
vancement of  Science  and  Art,  Mr.  George  T.  Curtis,  well 
known  as  the  author  of  the  "  History  of  the  Constitution  of 
tKe  United  States  "  and  other  publications  on  kindred  sub- 
jects, delivered,  March  8, 1875,  "  A  Discourse  on  the  Nature 
of  the  American  Union,  as  the  Principal  Controversy  in- 
volved in  the  Late  Civil  War."  This  discourse  was  repeated 
in  Philadelphia,  April  26,  of  the  same  year,  and  was  after- 
wards printed.^  This  discourse,  etc.,  is,  so  far  as  I  know, 
the  only  publication  which  has  appeared  attempting  to 
give  a  formal  statement  of  the  political  facts  supposed  to 
have  been  in  question  and  to  have  been  settled  by  the  war. 

Independently  of  the  general  interest  of  this  contribution 
to  political  literature,  I  find  it  particularly  important 
as  designating  the  point  or  question  which  I  agree  with 

1  The  power  to  establish  a  State  bank  was  not  one  of  the  powers 
"usurped  "  from  the  general  Government  by  the  government  of  Tennessee, 
according  to  that  part  of  Mr.  Justice  Bradley's  opinion,  which  is  cited  ante, 
p.  31,  because  it  was  one  of  the  "reserved"  powers. 

2  Pp.  35.     Dutton  &  Co.,  713  Broadway,  New  York. 


THEORY  OF   OUR   NATIONAL   EXISTENCE.  295 

Mr.  G.  T.  Curtis's  Discourse. 

the  author  in  regarding  as  the  fundamental  one  in  our 
American  constitutional  law,  while  I  entirely  disagree 
with  him  as  to  the  matter  of  fact  asserted. 

On  page  6  of  this  discourse,  Mr.  Curtis  has  said,  "  Now, 
there  can  be  no  question,  it  seems  to  me,  that  the  states- 
men of  all  sections  who  made  the  Constitution  understood 
this,  —  that  political  sovereignty,  or  government,  is  capable 
of  division  ;  according  to  subjects  and  powers ;  and  that 
while  the  people  of  each  State,  after  the  Revolution,  had  a 
perfect  and  absolute  right  of  independent  self-government, 
it  was  both  theoretically  and  practically  possible  to  trans- 
fer to  a  common  depositary  certain  of  their  political  powers 
for  specific  purposes,  while  they  reserved  all  their  other  ^ 
powers  to  themselves." 

As  long  as  the  question  was  of  the  interpretation  of  the 
written  Constitution,  as  of  any  legal  document,  it  has  been 
material  to  know  the  sense  in  which  the  words  and  clauses 
were  understood  by  those  who  drew  it  up  or  who  signed  it 
or  who  advocated  its  adoption.^     It  was  for  this  that  Story, 

1  lu  his  History  of  the  Origin,  etc.,  of  the  Constitution  of  the  United 
States,  Vol.  I.,  p.  206,  Mr.  Curtis  had  said,  "Political  sovereignty  is  capable 
of  partition  according  to  the  character  of  its  subjects."  See  also  ante,  p.  106, 
notes. 

In  Discourse,  &c.,  p.  9,  n.,  Mr.  Curtis  adds,  "  I  have  said  in  the  te.xt  that  the 
framers  of  our  Constitution  reached  the  conclusion  that  political  sovereignty 
is  divisible;  and  I  regard  this  central  truth,  which,  in  the  sense  in  which  it 
is  to  be  understood,  is  an  American  discovery,  as  the  key  to  all  correct  in- 
terpretation of  our  political  system."  Mr.  Curtis's  note  of  reference  is 
"Madison's  works, IV.,  390-391.  Compare  the  Federalist, Nos.  39-45."  In 
his  History  of  the  Constitution,  II.,  p.  38,  Mr.  Curtis  says, — "  to  regard  the 
people  of  each  State  as  competent  to  withdraw  from  their  local  governments 
such  portions  of  their  political  power  as  they  might  see  fit  to  bestow  upon  a 
national  government.  The  latter  plan  was  undoubtedly  a  noveltj'^  in  politi- 
cal science ;  for  no  system  of  government  had  yet  been  constructed  in 
which  the  individual  stood  in  the  relation  of  subject  to  two  distinct  sover- 
eignties, each  possessed  of  a  distinct  sphere,  and  each  supreme  in  its  own 
sphere." 

2  Those  "  statesmen  of  all  sections  who  made  the  Constitution,"  as  Mr. 
Curtis  has  it. 


296  INDIVISIBILITY   OF   SOVEREIGNTY. 

Political  Morality  distinguished. 

Kent  and  other  commentators  cited  the  recorded  opinions 
of  Aladison  and  other  statesmen  of  the  time. 

But  when  the  question  has  been  —  From  whom  does  this 
Constitution  derive  its  authority  as  law  for  us  who  hve  to- 
day  ?  —  it  is  not  of  the  shghtest  consequence  what  Mr. 
Madison  or  any  or  all  the  framers,  signers  and  advocates 
hoped,  wished  to  be,  or  expected  would  be  the  effect  or 
operation  of  the  Constitution.  We  want  to  find  out  the 
actual  living  persons  who  say  to-day^  We  Avill  this  Con- 
stitution to  be  law ;  sic  volo,  sic  jubeo,  stet  pro  ratione, 
voluntas.  If  we  can  find  out  whom  Mr.  Madison,  or  "  the 
framers,"  or  their  neighbors,  friends,  and  acquaintances, 
or  anybody  else  then  living,  being  an  inhabitant,  or  a  deni- 
zen, or  a  foreigner,  then,  in  their  day  and  time,  looked  upon 
as  this  person ,  for  themselves,  that  will  be  material  evi- 
dence for  us.  Because  we  may  suppose  that,  unless  a 
revolution  has  occurred  in  the  interval,  the  will  Ave  are 
now  seeking  has  continued. 

The  question.  Who  and  where  is  that  superior  whose 
measure  of  justice  I  must  obey  as  law,  or  bear  the  penalty 
of  transgression,  and  to  whom  I  must  be  loj^al  and  faithful 
in  peace  and  war,  or  incur  the  penalty  of  treason  ?  —  that 
question  —  to  which,  if  there  be  no  answer,  there  can  be 
no  loyalty,  no  patriotism,  no  devotion  to  country  ;  because, 
it  being  unanswered,  there  is  no  country  —  is  one  which 
may  or  may  not  be  answerable  by  the  American  of  to-day. 

The  question  relates  to  obligation,  to  duty,  in  political 
relations.  It  might  be  called  a  question  of  political 
morality,  or  of  that  which,  in  political  knowledge,  is  anal- 
ogous to  morality  in  the  sphere  of  religious  knowledge, 
being  predicated  on  the  inevitable  conditions  of  all  political 
existence,  the  relation  of  sovereign  and  subject  existing  by 
necessity,  whether  the  state  be  radical  democracy  or  ab- 
solute monarchic  despotism. 

As,  in  the  province  of  religious  ideas,  we  distinguish 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  297 

Dogmatic  Politics,  or  Political  Theology. 

knowledge  of  morality  from  theology,  so  in  the  province 
of  political  thought  we  might  discriminate  political  morality 
from  dogmatic  politics  or  political  theology,  if  the  expres- 
sion may  be  allowed. 

The  leading  men  of  1776-1787,  the  so-called  "founders  " 
of  the  republic,  in  common  with  some  of  the  most  brilliant 
minds  of  their  century,  gloried  in  their  dogmatic  politics,  — 
bequeathing  them  to  those  who  should  come  after  them, 
in  their  writings,  and  notably  in  The  Declaration  —  dog- 
mas of  political  theology,  doctrinal  politics,  about  equality 
of  men  at  creation ;  natural  rights ;  governments  resting 
on  the  consent  of  those  obliged  to  obey  them,  —  "  generali- 
ties," which,  as  either  true  or  false,  are  equally  applicable 
or  inapplicable  at  all  times  and  in  all  countries  :  propositions 
about  the  meaning  of  which  and.  the  practical  statecraft 
to  be  based  upon  it,  we  have  been  disputing  from  that  time 
to  the  present  hour,  when  inferences  are  drawn  from  their 
"  self-evident  truths  "  which  would,  have  filled  those  most 
respectable  and  conservative  persons  with  horror  and 
dismay. 

That  something  was  born  July  4,  1776,  which  may  have 
continued  to  the  present,  is  undeniable.  But  whether  it 
was  one  or  thirteen,  the  fathers  left  to  be  settled  by  the 
children.  What  the  real  thing  born  on  that  memorable  day 
was ;  wh(f  that  was,  or  who  those  were  who,  on  that  day, 
were  declared  "free  and  independent  States";  what  that 
Our  Country  was,  which  then  was  born  and  for  which, 
as  they  could,  he  should  "  pledge  life,  fortune,  and  sacred 
honor,"  was  not  told,  for  the  American  of  to-day,  by  his 
predecessors  of  a  century  ago,  for  they  did  not  tell  it  for 
themselves.! 

^  Brownson,  Am.  Rep.,  242.  "  But  the  philosophy,  the  theory  of  govern- 
ment, the  understanding  of  the  framers  of  the  Constitution,  must  be  con- 
sidered, if  the  expression  will  be  allowed,  as  obiter  dicta,  and  be  judged  on 
their  merits.  What  binds  is  the  thing  done,  not  the  tlieory  on  which  it  was 
done,  or  on  which  the  actors  explained  their  work,  either  to  themselves  or  to 


298  INDIVISIBILITY   OF   SOVEREIGNTY. 

Mr.  G.  T.  Curtis's  Discourse. 

For  the  "  venerable  founders  "  believed,  or,  rather,  im- 
agined that  the}^  believed,  that  they  had  got  rid  of  the 
relation  of  sovereign  and  subject  for  themselves  and  for  us  ; 
that  abstract  justice  was  quite  enough  to  serve  all  their 
political  uses  and  ours,  and  that  the  eternal  antagonisms, 
law  and  consent^  were  thereafter  to  form  a  state  to  be 
like  a  perpetual-motion  machine,  going  on  forever,  without 
expenditure  of  force,  without  the  effort  of  personal  will 
supported  by  force ;  and  that  writing,  fairly  engrossed  on 
parchment,  tagged  with  a  lump  of  seal- wax,  and  called 
"  The  Constitution,"  would  govern,  in  spite  of  their  wills, 
those  by  whose  wills  it  was  to  continue  as  law.^ 

But  Mr.  Curtis  has  himself  said  in  this  discourse  (p.  10), 
that  "  the  framers  could  not  know  whether  the  general 
Government  would  be  the  agent  of  the  States,  or  whether 
the  grant  would  be  considered  as  proceeding  from  the  peo- 
ple of  the  United  States  as  a  whole,  or  from  the  people  of 
each  separate  State,  or  from  the  States  as  sovereign." 
And  he  goes  on  to  show  that  their  own  doubts  on  this  sub- 
ject led  to  the  difficulties  of  1798-99,  about  the  Alien  and 
Sedition  laws.     If  so,  why  appeal  to  the  framers  noiv  ? 

If  we  recognize  this  utter  ignorance  on  the  part  of  the  peo- 
ple then  living,  as  to  the  persons  from  whom  the  Constitu- 
tion could  derive  its  authority,  and  yet  hold  that  there  is 
now  a  theory  which  had  become  so  true  before  1361  that  it 
required  only  a  huge  civil  war  to  manifest  it,  by  ending  in 
favor  of  the  Government,  we  must  attribute  to  the  written 
Constitution  itself  the  faculty  of  determining  who  were  its 

others.  Their  political  philosophy,  or  their  political  theory,  may  sometimes 
affect  the  ])lirasc<)lot;y  tliey  adojjt,  but  forms  no  rule  for  interpreting  their 
work.  Their  work  was  inspired  by  and  accords  with  the  historical  facts  in 
the  case,  and  is  aiithorized  and  ex])lained  by  them." 

1  Sec,  for  illustration,  the  opinions  of  the  several  justices  of  the  Supreme 
Court,  Chief  Justice  Jay,  Justices  Iredell,  Wilson,  Blair,  and  Cushing  in 
Chisholm  v.  Georgia,  2  Dallas,  41!)  (17y;3),  especially  those  of  Judge  Wilson 
and  the  chief  justice,  as  a  specimen  of  what  was  then,  at  least,  held  elo- 
quence and  sound  political  philosophy. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  299 

Mr.  G.  T.  Curtis's  Discourse. 

progenitors,  the  faculty  of  making  a  nation  or  people,  and 
compelling  States  to  be  States  by  its  own  inherent  though 
long-hidden  force,  —  the  fetish  Constitution  ! 

Mr.  Curtis  told  his  audience  that  this  idea  of  the  divisi- 
bility of  the  right  to  govern,  according  to  the  subjects  or 
objects  of  government,  lies  at  the  basis  of  our  mixed  politi- 
cal system,  and  it  is  what  has  always  made  that  system  so 
difficult  to  be  understood  by  intelligent  foreigners. 

"It  was  nearly  impossible,"  says  Mr.  Curtis  (p.  7),  "  for 
many  Englishmen  to  understand  the  legal  and  constitu- 
tional theory  which  gave  the  Federal  Government  a  moral 
and  constitutional  right  to  resist  the  secession  of  States 
from  the  Union." 

Of  the  answer  which  Mr.  Curtis  tells  us  he  gave,  he 
says,  "  This  answer,  of  course,  proceeded  upon  the  assump- 
tion that  such  is  our  American  constitutional  law  ;  that 
such  is  the  true  theory  of  our  Constitution.  But  this  was 
the  great  point  of  the  debate,  that  came,  after  all  other 
modes  of  debate  had  been  exhausted,  to  be  referred  to  the 
arbitrament  of  battle."  ^ 

Such  statements  of  our  position  might  suggest  to  foreign- 
ers the  inquiry,  If  the  Americans  themselves  could  not 
know,  until  they  had  fought  it  out,  what  their  own  Con- 
stitution was,  was  it  not  expecting  a  good  deal  to  demand 
of  strangers,  in  1861,  that  they  should  understand  it  in 
advance  ? 

Mr.  Curtis  himself  justly  observes :  "  All  that  I  have 
to  say,  in  closing  this  digression,  before  I  return  to  the  his- 
torical development  of  this  very  important  question,  is 
that,  considering  its  history  and  its  peculiar  character,  it 
is  not  very  wonderful  that  Englishmen  should  for  a  time 
have  given  their  sympathies  to  our  Southern  brethren. 
We  must  learn  to  judge  of  the  conduct  of  nations  and  in- 
dividuals from  the  point  of  view  at  which  they  stand,  and 

1  Compare  ante,  p.  89,  n.  2. 


300  INDIVISIBILITY  OF   SOVEREIGNTY. 

Of  certain  Paradoxes. 

must  appreciate  our  own  case  when  we  call  upon  them  to 
understand  it  and  to  act  accordingly." 

Mr.  Curtis  also  admits  (p.  28),  "  It  might  seem,  in  the 
abstract,  somewhat  paradoxical  to  suppose  that  such  a 
question  [of  the  right  of  State  secession  as  a  constitutional 
right]  could  be  definitely  settled  by  fighting." 

It  might  not  be  very  difficult  for  English  lawyers  to 
conceive  of  distribution  of  the  powers  of  government,  as 
between  the  State  governments  and  a  general  or  federal 
government,  while  the  States  continued  in  undisturbed 
peace  and  voluntary  union ;  for  this  distribution  has  been 
exemplified  in  all  the  colonial  system  of  the  British  Em- 
pire. But  when  the  proposition  is,  that,  while  at  war 
with  that  general  or  federal  Government,  the  principle  of 
division  of  sovereignty  as  between  them  and  that  Govern- 
ment still  obtained,  it  may  be  difficult  for  strangers  to 
see  why  the  States  were  not  "  in  rightful  possession  of  all 
their  pristine  autonomy  and  authority  as  States,"  ^  un- 
less they  became  subjects  of  conquest. 

Indeed,  the  whole  civilized  world  which  accepts  the 
definitions  of  the  long-settled  jus  gentium  and  the  modern 
jus  inter  gentes  cannot  avoid  saying.  You  do  state  a  par- 
adox. Your  own  terms  are  a  contradiction.  If  you 
settled  any  right  by  fighting,  it  could  only  have  been  a 
treaty  rights  —  a  right  which,  so  far  as  it  existed,  rested  only 
on  the  obligations  of  international  law.  It  could  not  have 
been  a  right,  as  you  now  claim,  under  constitutional  law.^ 

1  Tlie  words  of  Mr.  Justice  Bradley,  in  Keith  v.  Clarke,  ante,  p.  31. 

2  In  tills  connection  a  foreign  critic  might  also  ask,  How  does  it  happen, 
now  that  the  fighting  is  all  done,  that  we  sec  in  your  law-libraries  a  volume 
of  decisions  {ante,  p.  85,  n.  3)  by  the  chief  justice  of  your  Supreme  Court, 
during  part  of  the  war  and  after  it,  edited  by  a  prominent  lawyer  in  one  of 
the  States  of  the  late  Confederacy,  who  held  under  it  a  commission  in  tlie 
rebel  army,  with  liis  prefatory  comments, — sanctioned  apparently  by  the 
deceased  judge,  —  to  the  seeming  intent  to  show  that  the  editor  and  his  com- 
rades, fighting  for  their  respective  States,  were  men  as  good  and  true,  in 
the  matter  of  allegiance,  as  you  and  your  friends,  fighting  on  your  side  1 


THEORY   OF  OUR   NATIONAL   EXISTENCE.  301 

Of  certain  Paradoxes. 

But  the  same  public,  the  same  consensus  hmnani  generis 
by  which  the  jvs  gentium  and  the  jus  inter  gentes  subsist, 
will  also  say.  This  is  not  the  only  paradox  you  ask  us  to 
accept  without  criticism.  You  tell  us  that  you  have  dis- 
covered something  which  the  experience  of  three  thousand 
years  of  historic  civilization  has  told  us  is  an  impossibil- 
ity ;  that  is,  that  sovereign  powers  may  be  sovereign  while 
forcibly  parted ;  while  held,  not  merely  separately,  but  ad- 
versely. Your  fathers  found  themselves  living  under  a 
distribution,  in  exercise,  of  such  powers.  You  dreamed  that 
it  was  a  division  of  them,  and  say  that  you  have  demon- 
strated it  by  a  war,  in  which,  if  you  are  right,  the  part 
of  those  powers  held  by  the  States  must,  as  legitimate  sov- 
ereign powers,  have  been  exercised  adversely  to  those  held 
by  the  general  Government.  Though,  after  all,  when  it 
comes  to  a  question  about  forty  dollars  in  Tennessee  bank- 
notes, your  Supreme  Court  says  the  plan  don't  work,  that 
there  must  be  a  hitch  somewhere,  though  just  where  it 
is,  the  justices  find  it  difficult  to  say  on  any  theory  of 
supremacy  that  has  been  advocated  among  you  during 
your  one  century  of  political  experience. 

Mr.  Stickney  ("A  True  Republic,"  p.  118)  quotes  De 
Tocqueville  writing  in  1833  :  "  If  the  sovereignty  of  the 
Union  were  to  engage  in  a  struggle  with  that  of  the  States 
at  the  present  day,  its  defeat  may  be  confidently  predicted, 
and  it  is  not  probable  that  such  a  struggle  would  be 
seriously  undertaken."  Mr.  Stickney  adds,  "  And  that, 
doubtless,  was  the  opinion  of  most  men  who  then  chose  to 
think  on  the  point."  Subsequent  history  has  shown,  not 
§0  much  that  the  French  observer  was  mistaken  in  judg- 
ment, as  that  he  was  wrong  as  to  the  premises  from  which 
he  argued.  He  was  wrong  in  his  prediction,  because  the 
theory  of  division  of  sovereignty  which  he  had  got  hold  of 
(ante,  p.  102,  n.  1)  was  not  a  fact.  No  such  a  struggle  as 
he  had  imagined,  between  a  something  holding  a  portion  of 


302  SOVEREIGNTY  AND   GOVERNMENT. 

Not  all  Governments  Sovereign. 

the  powers  of  sovereignty  and  a  number  of  States  holding 
other  powers  of  sovereignty,  was  possible.  When  the 
struggle  came,  it  was  between  States  united,  on  the  one 
hand,  and  what  were  no  States,  on  the  other. 

Whatever  may  be  the  distinctive  mark  of  republican,  as 
distinguished  from  other  governments,  it  is,  or  at  least  was, 
up  to  a  recent  period,  the  leading  idea  in  American  con- 
stitutional politics  that  the  possession  of  sovereign  power 
should  be  at  all  times  distinguishable  from  the  organization 
of  the  government, — i\\Q  forma  imperii  from  the  forma 
regiminis} 

In  the  attempt  to  distinguish  the  United  States,  or  the 
Union,  as  a  personality  possessing  sovereign  powers,  and  yet 
as  one  not  identical  with  the  States  which  are  the  members 
of  the  Union,  it  has  been  practically  unavoidable  to  speak 
of  the  general  Government  as  the  grantee  of  these  powers, 
and  as  a  personality  capable,  by  its  political  nature,  of 
holding  them  by  right  of  possession  as  sovereign  against 
the  will  of  each  and  all  the  States.^ 

It  has  often  been  said  in  support  of  the  action  of  the 
general  Government  in  maintaining  its  authority  against 
the  Rebellion,  that  the  right  or  power  so  to  act  must  belong 
to  it  by  its  intrinsic  character  as  a  government,  or  on  the 
principle  that  every  government  must  have  the  right  to 
provide  for  its  own  existence  or  continuance.^ 

In  this  may  be  found  an  illustration  of  the  ambiguity  of 
words  usually  employed  in  stating  political  distinctions. 
The  term,  "a  government,"  "the  government,"  may  be 
used  in  designating  some  who  hold  the  supreme  power  by 
personal  claim  ;  as  one  may  speak  of  the  Government  of 

1  Ante,  p.  203.  2  Ante,  p.  102,  IV.  V. 

3  In  the  article  in  the  North  American  Review,  January,  1864,  by  Mr. 
Lowell,  entitled  "  The  President's  Policy  "  (ante,  p.  260,  note),  it  is  said  (p. 
239),  "A  chief  magistrate  compelled,  for  tlie  first  time  in  our  history,  to  act 
upon  the  fundamental  maxim  laid  down  by  all  publicists,  that  the  first  duty 
of  a  government  is  to  defend  its  own  existence." 


THEORY   OP   OUR  NATIONAL  EXISTENCE.  303 

The  General  Government  not  Sovereign. 

Russia,  of  Turkey,  or  of  Burmah,  where  governing  is  the 
personal  right  of  a  sovereign  individual,  or  of  his  dynasty. 
To  a  government  in  this  sense  the  statement  above  made 
may  apply. ^ 

But  here,  in  this  country,  there  was  no  such  govern- 
ment in  existence,  unless  that  which  was  identical  with 
the  organized  people  of  the  States  united.^  The  general 
Government,  as  well  as  the  State  governments,  was  an  em- 
ploi/e,  and  had  no  rights  as  against  its  employ ers,^  the 
organized  people  of  the  States,  united.  The  Government, 
supposed  to  be  the  grantee  in  perpetuity  of  certain  powers 
of  sovereignty,  was  not  an  actual  person  in  being,  inde- 
pendently of  the  grant,  corresponding  to  a  monarch,  prince, 
or  dynasty,  or  corresponding  to  an  organized  body  of  indi- 
viduals like  the  j)olitical  people  of  a  State  of  the  Union. 

A  president  and  vice-president,  a  number  of  senators 
and  representatives,  all  elected,  and  certain  judges  ap- 
pointed by  some  of  these  so  elected,  and  their  several  sub- 
ordinates or  appointees,  all  of  whom,  except  as  they  receive 
election  or  appointment,  are  simple  private  citizens,  exer- 
cise powers  in  governing,  and  so  are  the  government  of  the 
United  States.  The  Government,  as  a  personal  grantee  of 
sovereign  powers,  is  an  "  abstraction." 

It  is  paradoxical  to  say  that  such  a  government  can  hold 
anything  as  against  the  persons  who  are  in  actual  existence 
as  original  power-holders,  —  the  organized  political  peoples 
of  the  States  being  united  ;  who,  as  such,  exist  and  would 
continue  to  exist  without  reference  to  the  election  or  ap- 
pointment of  the  various  officials  who,  as  their  agents,  are 
the  Government  of  the  United  States.  ^ 

1  The  statement  is  that  a  government,  in  that  sense,  may  and  must  make 
its  own  existence  its  own  moral  end;  which  is  the  doctrine  of  Machiavelli's 
11  Principe.     See  Woolsey's  Political  Science,  I.,  §  GO. 

2  See  the  use  of  the  word  "  government,"  by  Mr.  Austin,  ante.  p.  140,  note  1. 

3  For  this  reason  there  is  a  fallacy  in  Mr.  Madison's  statement  in  the 
Federalist,  No.  14,  which  has  of  late  been  cited  for  an  authority,  — "  the 


304  SOVEREIGNTY   AND   GOVERNMENT. 

The  General  Government  not  Sovereign. 

Mr.  Curtis,  in  the  Discourse,  etc.,  already  referred  to 
has  said  (p.  29),  "while  the  war  has  settled  the  principle 
that  the  powers  of  the  general  government  were  irrevo- 
cably granted  to  it,  by  a  fundamental  law  enacted  by  the 
joint  consent  of  the  people  of  every  State,"  etc.  If  this 
means  anything,  it  is  that  the  general  government  is  no 
such  body  of  agents,  but  such  a  government  as  above 
spoken  of,  with  a  personal  claim  to  sovereignt}',  to  be" 
maintained  by  its  own  force  and  will.  Whether,  in  say- 
ing that  "  the  war  has  settled  the  principle,"  Mr.  Curtis 
means  that  a  new  principle  or  political  fact  has  been  brought 
into  existence  by  the  military  success  of  the  persons  admin- 
istering the  general  government  does  not  appear  ;  but  if  this 
is  not  the  case,  "  the  joint  consent  of  the  people  of  every 
State,"  if  this  is  a  good  expression,  is  as  necessary  to  uphold 
continuously  this  government  now  as  at  the  first  moment ; 
and  if  it  were  withdrawn,  there  would  be  no  such  govern- 
ment in  existence.  "  The  joint  consent  "  was  and  is  a  joint 
consent,  because  the  poiver  to  consent  was  and  is  joint :  be- 
cause it  was  in  joint  exercise,  aud  in  that  only,  that  the 
States  had  their  capacity  to  consent. 

The  doctrine  or  statement  of  the  fundamental  fact  is  not 
varied  in  the  slightest  degree  by  employing  the  terms,  the 
Union  or  the  United  States,  instead  of  the  term  the  Govern- 
ment of  the  United  States  ;  unless  the  intention  is  to  recog- 
nize that  the  organized  political  peoples  of  the  several 
States,  being  in  union,  are,  as  so  many  living  beings,  the 
supreme  power-holder,  for  whom  the  government  of  the 
United  States  is  an  instrument,  as  truly  as  the  governments 
of  each  State  are  instruments  for  the  organized  political 

great  comment  of  Madison,"  says  Mr.  Frotliingluiin  (Ri.se  of  tlie  Republic, 
p.  602),  tliat,  "If  they  [tlie  State  governments]  were  abolishctl,  tiie  general 
Government  would  be  compelled  by  the  principle  of  self-preservation  to  re- 
instate them  in  their  proper  jurisdiction."  If  tlie  political  peo])les  of  the 
several  States  refuse  any  longer  to  sustain  their  State  institutions,  then 
President,  Congress,  and  judiciary  will  disappear,  ijisojiwlo. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  305 

The  Government  continued  by  State-action. 

people  of  that  State.  The  Union,  the  United  States,  in 
any  other  sense  than  this,  is  a  myth,  a  fiction  of  the 
mind.i 

The  fact  that  the  body  of  persons  constituting  the  gen- 
eral government  by  exercising  the  executive,  legislative, 
and  judicial  functions  of  a  government,  for  general  purposes 
and  with  general  jurisdiction,  had  not  originally  and  have 
not  since  had  the  quality  of  continued  existence  or  of  self- 
continuance,  but  in  order  to  continue  must,  precisely  as 
the  State  governments  in  this  respect,  have  been  renewed 
by  the  action  of  other  persons  over  whose  volition,  in  that 
matter,  they  had  no  control,  would  appear  to  be  too  obvious 
to  require  any  demonstration. 

Mr.  "Webster,  in  his  celebrated  reply  to  Mr.  Calhoun, 
attempted  to  make  out  that  the  State  legislatures  or  the 
States,  meaning  apparently  both  the  members  of  the  State 
legislatures  and  the  electors  of  the  several  States,  are 
obliged  to  exercise  their  individual  volitions  in  keeping 
up  the  personnel  of  the  general  government.^  This  was 
simply  a   grand   illustration  of   the  fetish  conception  of 

1  Ante,  pp.  110-115.  Dr.  Woolsey,  in  a  passage  which  has  been  here  al- 
ready cited  (ante,  p.  95,  n.),  illustrates  the  error  which  is  substantially  iden- 
tical with  that  "  exaltation  of  the  organ  "  which  he  there  reproves.  He 
does  this  by  speaking  of  the  United  States  as  something  existing,  or  being 
sovereign,  without  reference  to  "  the  States  which  compose  the  Union." 
According  to  my  liglits,  the  States  which  compose  the  Union  are  the  United 
States,  and  there  is  nobody  else  to  be  the  United  States.  Compare  also 
ante,  p.  120,  n. 

2  Webster's  Works,  III.,  p.  471.  "  It  [the  Constitution]  makes  its  own 
preservation  depend  on  individual  duty  and  individual  obligation.  Sir,  the 
States  cannot  omit  to  appoint  senators  and  electors.  It  is  not  a  matter 
resting  in  State  discretion  or  State  pleasure.  The  Constitution  has  taken 
better  care  of  its  own  preservation.  It  lays  its  hand  on  individual  con- 
science and  individual  duty.  ...  No  member  of  a  State  legislature  can 
refuse  to  proceed  at  the  proper  time  to  elect  senators  to  Congress  or  to  pro- 
vide for  the  choice  of  electors  of  President  and  Vice-President.  .  .  .  Let  it, 
then,  never  be  said,  sir,  that  it  is  matter  of  discretion  with  the  States  whetiier 
they  will  continue  the  government,  or  break  it  up  by  refusing  to  appoint 
senators  and  elect  electors.  They  have  no  discretion  in  the  matter."  Com- 
pare also  Mr.  Justice  Swayne's  language  in  White  v.  Hart,  ante,  p.  20. 


306  SOVEREIGNTY  AND   GOVERNMENT. 

AVhy  this  Government  may  continue. 

the  Constitution,  as  of  a  something  having  power  to 
maintain  its  own  existence  independently  of  the  will  of 
its  maker. 

As  far  as  at  present  informed,  I  do  not  know  that  any 
person,  of  either  little  or  great  reputation,  has  ever  affirmed 
that  the  Constitution,  being  a  law  in  its  nature,  caused 
itself  to  be  drafted  in  the  convention  and  afterward 
adopted  and  put  in  operation  as  a  rule  of  general  govern- 
ment ;  but  it  seems  to  me  that  that  assertion  would  not 
be  any  more  preposterous  than  the  doctrine  that  the  Con- 
stitution can  cause  itself  to  continue  to  operate  as  a  rule  of 
general  government.  There  is  no  more  reason  or  neces- 
sity for  such  a  supposition  now  than  there  was  at  the  first 
moment  of  the  organization  of  the  government  according 
to  the  provisions  of  the  Constitution. 

That  Government  began  and  has  continued  so  far,  and 
will  continue,  so  far  as  it  may  continue,  for  the  same  rea- 
son that  governments  continue  all  over  the  world  ;  that  is, 
because  wherever  there  are  human  beings  there  is  society, 
and  wherever  there  is  society  there  is  political  power,  and 
wherever  there  is  political  power  those  who  have  the 
chance  to  use  it  will  use  it. 

As  the  facts  are  in  this  country,  the  organized  political 
people  of  the  States,  being  in  union,  have  held  and  used 
this  power ;  and  nobody  else  ;  and  they  could  have  been 
expected  to  hold  it  and  use  it  for  the  same  reason  that 
those  who  hold  supreme  political  power,  whether  they  be 
one  or  a  few  or  many,  in  the  various  countries  in  Europe, 
Asia,  and  Africa,  may  be  expected  to  hold  it  as  long  as 
they  possibly  can,  —  not  because  it  is  for  the  good  of  man- 
kind in  general  or  of  society  in  general,  nor  yet  because  it 
is  for  the  good  of  a  certain  portion  of  society  or  of  a  lim- 
ited portion  of  the  human  race,  nor  because  there  was  an 
original  compact  made  by  human  beings  with  each  other 
"  once  upon  a  time,"  under  which  these  power-holders  are 


THEORY  OF   OTJE   NATIONAL  EXISTENCE.  307 

Why  Governments  exist  at  all. 

bound,  as  b}'  law,  to  hold  this  power ;  but  simply  because 
they  have  got  it  and  like  to  keep  it. 

Government  has  not  existed  all  over  the  world  from  the 
beginnings  of  recorded  time  because  it  is  or  was  a  good 
thing,  or  a  useful  thing,  or  an  indisj^ensable  thing.  It  has 
existed  because  men  have  been  so  constituted  that  political 
power  never  goes  begging.  The  desire  for  rule,  the  pas- 
sion for  power  is,  so  far  as  the  experience  of  mankind 
shows  anything,  as  requisite  for  the  continuation  of  gov- 
ernment as  other  passions  for  the  continuation  of  the 
race.  That  it  has  made  men  "  wade  through  slaughter  " 
in  the  hope  of  attaining  a  greater  or  less  enjoyment  of 
dominion,  that  it  has  made  crime,  if  committed  for  its 
gratification,  seem  almost  a  virtue,  does  not  change  the 
fact.  It  is  the  foundation  of  all  government,  in  re^Dublics 
as  well  as  in  monarchies,  in  "  these  United  States  "  just 
as  truly  as  in  Russia  or  in  Afghanistan. 

All  government  in  this  country,  before  and  in  Mr.  Web- 
ster's time  at  least,  had  been  visibly  exercised  only  through 
persons  chosen  by.  certain  individuals  holding  the  elective 
franchise  under  constitutions  and  laws  enacted  freely  by 
themselves  corporately,  as  constituting  the  political  peo- 
ples of  States  in  union.  Though  no  coercive  power  com- 
pelling these  individuals  to  sustain  such  government  by  the 
exercise  of  their  franchise  was  discernible,  yet  their  human 
nature  might  have  been  trusted  to  induce  them  to  continue 
to  do  so.  But  if  they  ever  should  have  failed  to  renew  the 
general  government,  as  provided  in  the  Constitution,  then 
that  Constitution  would  have  ceased  to  be  supported  by 
their  will,  and  so  ceased  to  be  the  Constitution  for  the 
people  of  the  United  States. 

The  doctrine  that  the  personality  holding  sovereignty  as 
a  unit,  from  whom  the  Constitution,  as  law,  derived  its  au- 
thority, should  be  found  in  the  nation  or  people  at  large, 
without  regard  to  State  organizations,  or  to  the  existence 


308  THE   PLACE   OF   SOVEREIGNTY. 

The  Historj  of  a  Theory. 

of  the  organized  political  people  of  the  several  States,  is 
not  a  novelty.^  But  its  prominence  has  varied  at  different 
periods  of  our  brief  political  history,  and  its  assertion,  from 
time  to  time,  has  been  supported  on  one  or  the  other  of 
two  distinct  and  really  opposite  grounds. 

If  the  learning,  ability,  and  patriotism  of  its  advocates 
could,  consistently  with  the  nature  of  things,  cause  a  hy- 
pothesis to  become  a  fact,  or  anything  else  than  a  hypoth- 
esis, the  theory  which  ascribes  the  authority  of  the  written 
constitution  of  general  government  to  the  intelligent  act  of 
"  the  people  "  or  "  the  nation,"  as  a  mass  of  so  many  mil- 
lions living  in  a  certain  geographical  area,  might,  long  be- 
fore any  events  which  have  occurred  since  1861,  have 
acquired  the  character  of  history. 

It  is  plain,  from  the  memorials  of  the  period  beginning 
with  the  outbreak  of  the  American  revolution,  and  ending 
with  the  adoption  of  the  Constitution,  that  there  were 
many  prominent  men  who  recognized,  more  or  less  clearly, 
that  ultimate  sovereignty  is  incapable  of  division,  although 
they  could  not  discern  any  possible  possessors  of  sover- 
eignty, other  than  either  thirteen  States,  as  thirteen  nations, 
on  the  one  hand,  or  a  sovereign  mass  of  population,  inde- 
pendent of  State  boundaries,  on  the  other. 

Who  they  were  who  then  affirmed  the  one  or  the  other 
of  these  alternatives  as  the  fact,  is  immaterial  for  the  pres- 
ent inquiry. 

It  may  be  that  the  relations  of  the  various  congresses 
from  1774  to  1781,  called  "  Continental,"  and  of  the  gov- 
ernment under  the  Confederation,  were  at  the  time,  as  they 
have  been  since,  almost  universally  taken  to  indicate  that, 
as  matter  of  fact,  each  State  was,  while  these  relations 
existed,  severally  or  individually  sovereign  ;  and  it  may 
also  be  that,  when  the  Constitution  had  become  the  law  of 
the  land,  it  was  almost  as  universally  understood  as  being, 

1  Compare  ante,  pp.  108-115. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  809 

The  History  of  a  Theory. 

and  declaring  itself  to  be,  one  of  two  things,  as  the  fact, 
either — 

1.  A  delegation  of  powers  by  so  many  severally  sover- 
eign and  independent  States  to  a  common  agent  of  govern- 
ment ;  ^  or, 

2.  A  grant  or  cession  of  certain  powers,  by  such  States, 
being  so  severally  sovereign  and  independent,  to  a  some- 
thing or  somebody,  quite  distinct  from  those  States  which 
made  such  grant  or  cession  of  certain  powers.^ 

But  it  may  also  appear,  from  various  records  of  the  time, 
that  there  w^ere,  in  the  earliest  days  of  the  government  under 
the  Constitution,  some  —  and  those,  too,  whose  public  and 
private  virtues  entitled  them  to  the  highest  consideration 
—  who  accepted  neither  of  these  views,  and  who  insisted 
more  or  less  strenuously,  according  to  their  opportunities 
in  public  and  private  life,  that  the  Constitution  was  the 
legislative  act  of  the  nation  or  people  as  a  mass,  in  refer- 
ence to  which  the  States  were  not  the  actors,  as  grantors  of 
political  power  ;  or,  if  such,  were  so  only  in  a  subordinate 
or  representative  capacity.^ 

It  might  be  possible,  by  a  minute  analysis  of  this  last 
class  of  opinions,  to  show  that  they  were  supported  by  one 
or  the  other  of  two  very  different,  totally  distinct,  and 
even  conflicting  methods  of  demonstration.* 

That  is  to  say,  it  may  appear  that  there  were  — 

First,  some  Avho  relied  on  an  a  priori  deduction  of  sov- 
ereignty, founded  on  the  social-compact  theory  of  the 
eighteenth  century  —  the  hypothesis,  pure  and  simple, 
without  reference  to  or  care  for  the  historical  evidence. 

Second,  some  who  professed  to  have  discovered  the 
location  of  sovereignty  in  the  same  people  by  an  a  posteriori 

I  Compare  ante,  p.  99,  I.,  II.,  III.  2  Compare  ante,  p.  102,  IV.,  V. 

3  Compare  the  statements,  ante,  VI.,  VII.,  VIII.,  pp.  103,  lOi,  and  IX., 
p.  108. 

*  See  the  application  of  the  distinction  to  this  subject  considered  in 
Jameson's  "  Constitutional  Convention,"  ch.  iii. 


310  THE   PLACE   OF   SOVEEEIGNTY. 

The  History  of  a  Tlieory. 

induction,  relying  on  their  view  of  the  historical  facts, 
according  to  which  the  people,  as  a  mass  of  individuals, 
actually  asserted  and  exercised  all  sovereign  power,  either 
at  and  in  the  revolutionary  separation  of  the  colonies  from 
the  British  empire,  or  at  and  in  a  later  revolution,  occur- 
ring in  the  adoption  of  the  Constitution  in  1787. 

It  is  not  easy  to  distinguish  the  respective  followers  of 
these  two  methods  of  demonstration ;  because,  as  their 
several  political  conclusions  are  the  same,  their  respective 
arguments  have  been  generally  stated  as  if  they  were 
equally  acceptable,  or  could  be  received  together ;  as  com- 
patible, or  as  each  equally  true  and  valid. 

In  many  of  the  earliest  opinions  delivered  in  the  Su- 
preme Court,  the  first  of  these  methods  is  chiefly  illus- 
trated ;  in  which  the  influence  of  the  prevailing  political 
theories  of  tlie  time  is  clearly  discernible.  The  social-com- 
pact theory  is  referred  to  as  unquestionable  and  as  histori- 
cally exemplified  in  the  adoption  of  the  Constitution,  if  not 
also  in  the  Revolution. ^ 

Aside  from  any  estimate  which  may  be  formed  at  the 
present  day  of  the  value  of  the  theory  of  the  social  com- 
pact, it  is  to  be  noticed  that  in  the  application  of  the  doc- 
trine to  their  own  circumstances,  its  adherents  on  the  Su- 
preme Bench,  or  elsewhere,  were  divided  by  their  several 
political  preferences.  While  some  asserted  the  doctrine  as 
having  been  illustrated  at  this  period  by  the  formation  of 
one  nation  in  the  place  of  the  States  which  had  succeeded 
to  the  colonies,  it  was  as  confidently  relied  on  by  others 
to  prove  that  the  inhabitants  of  each  colony  became, 
and  ever  afterwards  continued,  a  severally  independent 
state  or  nation.^     As  they  all  spurned  tlie  historic  basis 

'  As  in  tlie  opinions  delivered  in  Cliisholni  t'.  Ceori^ia,  2  Dallas,  49  ;  atite, 
p.  137. 

2  A  very  striking  illustration  is  given  in  tlie  edition  of  Blackstone's 
Commentaries,  by  Tucker  of  Virginia,  Vol.  I.,  appendix,  notes  A,  B,  where 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  311 

The  History  of  a  Theory. 

in  their  deduction,  each  advocate  of  that  doctrine  claimed 
for  himself  the  power  to  discriminate  what  particular  ag- 
gregate of  individuals  should  be  supposed  to  have  com- 
bined in  the  compact,  in  order  to  become  "  a  people  "  or 
"  a  state  "  at  that  time.  Consequently,  they  determined 
this  by  their  several  views  of  political  expediency  ;  that  is, 
as  they  were  already  prepossessed  in  favor  either  of  a  con- 
centrated or  of  a  decentralized  form  of  political  existence. 

Among  the  judicial  opinions  of  the  same  early  period 
which  thus  attribute  the  Constitution  to  the  will  of  tlie 
nation  or  people,  in  the  same  sense  of  being  a  mass  of  indi- 
vidual persons  aside  from  pre-existing  political  organiza- 
tions, there  may  be  found,  here  and  there,  some  passages 
which  profess  to  discern  the  appearance  and  action  of  such 
a  people,  as  a  historic  fact,  in  the  same  circumstances  in 
which  others,  taking  the  opposite  view,  saw  a  manifesta- 
tion of  the  independent  will  of  the  States,  or  the  several 
people  of  each  State. 

As  tlie  theory  of  the  eighteenth  centur}'-  gradually  fell 
into  discredit,!  the  historical  method  became  more  and 
more  in  request  to  sustain  the  doctrine  ;  and  it  is  this 
method  which  appears  more  prominently  in  the  later  cases, 
especially  of  the  time  of  Chief-Justice  Marshall  and  of  Mr. 
Justice  Story .2 

The  question  of  the  location  of  sovereignty,  as  has  already 

the  editor  founds  his  doctrine  of  State  sovereignty  and  the  right  of  secession 
upon  the  social  compact,  which  he  regards  as  clearly  established  historic  fact. 

^  But  it  has  had  a  remarkable  hold  on  American  political  thought.  Mr. 
Webster,  in  his  speech  on  Mr.  Calhoun's  resolutions,  presented  his  arguments, 
in  form,  on  the  historical  basis.  But,  referring  to  the  language  of  some  of 
the  State  conventions  on  adopting  the  Constitution,  he  said,  "  These  con- 
ventions, by  this  form  of  expression,  meant  merely  to  say  that  the  people 
of  the  United  States  had,  by  the  blessing  of  Providence,  enjoyed  the  oj)por- 
tunity  of  establishing  a  new  Constitution,  /bM?i(/e</  on  the  consent  of  the  people. 
This  consent  of  the  people  has  been  called,  by  European  writers,  the  social 
compact."  &c. —  Webster's  IVorks,  III.  477. 

2  Marshall,  chief  justice  from  1801  to  1835,  succeeded  by  Taney.  Story 
appointed  1811,  died  1836. 


312  THE   PLACE   OF   SOVEREIGNTY. 

The  History  of  a  Theory. 

been  noticed,^  being  a  historical  one,  is  not  judicial  in  its 
nature.  The  members  of  a  court,  in  accepting  their  com- 
missions, recognize,  each  for  himself,  that  they  are  given  by 
some  sovereign  authority  ;  but  the  court,  as  such,  can  have 
no  capacity  to  determine  who  the  persons  are  to  Avhom  the 
autliority  of  the  Constitution,  as  law,  should  be  ascribed.^ 
Whether  tiny  later  decisions  of  the  Supreme  Court  have 
fallen  behind  these  earlier  opinions  in  their  assertion  of 
"  the  nation  "  or  "  the  jjeople,"  as  the  only  source  of 
power,  or  whether  the  doctrine  of  State  rights  has,  at  any 
time  before  1861,  had  the  upper  hand  on  the  bench,  is  im- 
material. But  so  far  as  the  opposite  doctrine  —  i.  e.,  that 
which  refers  the  Constitution,  as  a  law  for  the  distribution 
of  power,  to  the  Avill  and  act  of  the  people  as  a  mass,  in  dis- 
tinction from  the  will  and  act  of  the  States,  being  united  — 
has  been  maintained  in  the  Supreme  Court,  it  had  been 
rested,  before  the  war,  almost  entirel}'  on  the  Webster  and 
Story  view  of  the  instrument,  as  determining,  by  its  own  lan- 
guage, the  pre-existence  of  those  who  gave  it  its  authorit}^ ; 
that  is,  in  short,  the  argument  from  the  words,  "  We,  the 
people,"  —  as  to  which  enough,  for  the  limits  of  this  essay, 
has  already  been  said  in  a  former  chapter.^ 

1  Ante,  p.  98. 

2  Yet,  from  tlie  manner  in  which  tlie  writers  of  the  commentaries  and 
text-books  still  refer  to  the  opinions  of  the  benclv  on  tliis  question,  as  if  tlie 
judges  themselves  considered  them  in  the  nature  of  judicial  decision,  it 
should  be  inferred  that  these  writers  were  as  yet  unaware  of  "  the  political 
department,"  to  which  the  Supreme  Court  yields  so  respectfully  in  this 
matter.     Compare  ante,  p.  290.     See  I'omeroy,  Const.  Law,  §§  Io4-lo0. 

8  Ante,  pp.  108-115.  Of  this  argument  tlie  English  contributor  in  the 
London  Law  Magazine  for  August,  1863  {ante,  p.  205,  n.),  very  pithily 
remarked  that  it  was  one  "  whose  only  force  lies  in  the  reputation  of  its 
advocates."  The  leading  judicial  assertion  of  it  may  be  that  of  Marshall, 
in  McCulloch  v.  Maryland  (1819),  4  Wheat.  316, —  "The  government  pro- 
ceeds directly  from  the  people,  is  ordained  and  established  in  the  name  of 
the  people."  —  lb.  403.  Perhaps  that  by  Jay,  in  Chisliolm  r.  Georgia,  2  Dall. 
470,  is  equally  positive.  To  be  sure,  nobody  knows  whether  Jay  and  Marshall 
understood  by  "  the  people  "  what  Mr.  Ponicroy  understands  by  the  term,  and 
what  Story  and  Webster  appear  to  have  understood.     See  ante,  p.  1U9. 


THEORY   OF   OUR    NATIONAL  EXISTENCE.  81 3 

No  Parallel  with  the  French  Revolution. 

Among  those  who,  in  some  vague  way,  have  ascribed 
all  our  institutions  to  the  authority  usually  understood  by 
the  term  "  the  sovereignty  of  the  people,"  there  have  been 
doubtless  many,  both  here  and  in  Europe,  who  have 
supposed  that  the  people  of  France,  in  their  assertion  of 
their  political  and  civil  rights  in  1789,  followed  a  course 
of  political  experiment  in  which  the  people  of  the  Ameri- 
can colonies  had  preceded  them  in  1776.1 

But,  whether  fortunately  or  unfortunately  for  us  Ameri- 
cans of  to-day,  there  was  no  such  similarity  in  the  political 
experiences  of  the  French  nation  and  the  people  of  the 
American  colonies,  in  those  crises  which  each  respec- 
tively denominates  "  the  Revolution." 

When  the  French  revolutionists  had  thrown  off  a  dy- 
nastic monarchy  together  with  the  oppressive  and  degrad- 
ing privileges  of  the  court  and  the  nobility  which  had 
survived  those  needs  of  the  earlier  civilization  which  they 
were  originally  devised  to  sustain,^  it  was  of  necessity  that 
the  body  politic  which  it  devolved  uj)on  the  leaders  of  the 
republic  to  direct  should  be  a  centralized  state.^ 

During  the  previous  two  centuries,  the  persistent  policy, 
self-interest,  or  mere  instinct  of  the  reigning  dj^nasty  had 
built  up  the  unitary  authority  of  the  king  in  the  place  of 
that  distribution  of  political  power  which  had  been  the 
basis  of  those  feudal  institutions  by  which  the  Gothic  con- 
querors had  restored  order  after  the  destruction  of  the 
Roman  civilization.^  The  conditions  of  nationalization 
or  centralization  had  been   established  already  by  those 

1  De  Tocqueville  saj^s  that  the  Americans  seemed  to  the  French  to  have 
only  put  in  practical  execution  what  their  own  writers  had  conceived  as 
possible,  and  to  have  given  the  reality  of  fact  to  what  the  French  were  then 
dreaming  of.     Ancien  Re'gime,  p.  24G,  French  ed. 

'^.  Taine's  Ancient  Regime,  Book  I. 

3  De  Tocqueville,  Ancien  Regime,  etc.,  Liv.  iii.  c.  2 ;  c.  5. 

♦  This  centralizing  process  was  not  confined  to  France.  Lieber,  Civil 
Liberty,  etc.,  pp.  49-5L 


314  THE   PLACE   OF   SOVEREIGNTY. 

■  No  Parallel  with  the  French  Revolution. 

whose  memoi'ies  the  French  revohitionists  execrated  and 
whose  descendants  they  massacred.  Provincial  institu- 
tions, local  parliaments,  estates  general,  etc.,  had  already 
been  abolished,  or  were  sapped  of  their  vital  force,  and  ex- 
isted but  in  name.  When  a  new  administrative  authority, 
adequate  to  meet  the  internal  and  external  enemies  of  the 
convulsed  state  was  to  be  found,  the  elements  of  local  self- 
government,  which  might  have  given  organic  life  to  such 
authority,  were  wanting.  A  revolutionary  despotism  could 
not  look  for  support  in  traditions  of  any  kind,  or  in  any 
feeling  analogous  to  that  devotion  or  loyalty  to  certain 
persons  or  families,  which,  whether  deserving  of  praise  or 
of  scorn,  had  been  the  strength  of  the  dynastic  monarchy. 
But,  in  the  nature  of  the  case,  it  was  obliged  just  as  much 
to  seek  moral  sanction.  Those  then  who  successively 
wielded  the  supreme  power  set  up  an  hypothesis;  they 
presented  themselves  as  holding  the  contributed  sover- 
eignty of  individual  citizens,  under  "  the  social  compact," 
according  to  those  theoretic  systems  of  Locke,  Rousseau 
and  others,  which,  as  the  doctrine  of  "the  rights  of  man," 
had  been  sentimentally  applauded  by  the  perishing  regime 
of  kings  and  courtiers  ^  long  before  they  were  invoked  to 
sustain  the  acts  of  those  who  at  the  foot  of  the  guillotine 
demanded  the  heads  of  monarch  and  nobles  in  the  name  of 
the  sovereignty  of  the  nation. 

These  ideas  of  the  encyclopedic  school  were  the  new 
ideas  of  the  eighteenth  century,  and  the  "  framers  "  of  the 
Declaration  and  of  our  constitutional  laws,  as  also,  un- 
doubtedly, a  very  considerable  proportion  of  the  most  cul- 
tivated part  of  the  population,  were  largely  in  sympathy 
with  them.2  But,  whatever  those  framers  may  have 
wished  for,  designed,  or  expected,  the  fact  stands  out  that 

1  Taine's  Ancient  Regime,  B.  iii.  ch.  iv.  4.  De  Tocqueville,  Ancien  Re- 
gime, etc.,  p.  247. 

2  Yon  Ilolst,  Constitutional  History,  vol.  i.  pp.  30,  31. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  315 

The  States  recognized  Internationally. 

the  spirit  of  local  self-government,  the  desire  to  be  gov- 
erned only  by  the  i^olitical  people  of  the  State,  in  severalty, 
was  so  strong  in  the  people  of  the  former  colonies  that  any 
action  corresponding  with  the  French  realization  of  le 
peuple  roi  was  out  of  the  question.^  The  truth  is,  as  Von 
Hoist  has  indicated,  — more  clearly,  perhaps,  than  a  native- 
born  student  would  have  done,  —  that  the  people  of  the 
nascent  republic  not  only  cherished  fondly  their  local 
political  organizations,  but  even  yielded  most  reluctantly  to 
the  pressure  of  fact  —  the  unwelcome  fact  —  that,  except 
as  united,  the  States  were  not  "free  and  independent 
States  "  at  all.  2 

But  it  was  equally  the  fact  that,  being  so  united,  they 
—  the  States — were  free  and  independent,  and  under  no 
dominion  of  any  other,  whether  one  person  or  many  per- 
sons, at  home  or  abroad.  Being  so  united  in  voluntary 
union,  the^  have  been  recognized,  as  constituting  an  inde- 
pendent nation,  by  other  "powers,"  great  and  small, — 
not  merely  in  name  or  as  a  geographical  expression,  but 
diplomatically,  in  the  international  relations  of  war  and 
peace,  acting  by  successive  agencies  of  government  ap- 
pointed through  the  electoral  action  of  the  political  peo- 
ples of  such  States,  but  being  always  known  as  states 
holding  autonomic  power,  or  sovereignty,  in  union. 

It  was  said  by  Mr.  Justice  Patterson,  in  Penhallow  v. 
Doane,  3  Dallas,  54,  — "  The  truth  is  that  the  States  in- 
dividually were  not  known  nor  recognized  as  sovereign  b}^ 
foreign  nations,  nor  are  they  now.  The  States  collectively, 
under  Congress^  as  their  connecting  point  or  head,  were 

1  The  sympathy  with  the  French  republic  afterwards  manifested,  in  1791, 
more  especially  by  one  political  party  (conipare  Von  Hoist,  i.  pp.  107-120), 
is  a  matter  which  does  not  affect  this  view  of  the  previous  state  of  public 
sentiment  on  the  location  of  sovereign  power  at  home. 

2  Von  Hoist,  Const.  Hist,  vol  i.  p.  62. 

8  The  "  Congress  "  under  the  Confederation,  which  first  assembled  March 
2, 1781,  and  ratified  the  Treaty  with  Great  Britain  signed  September  3, 1783. 


316  THE  PLACE   OF   SOVEEEIGNTY. 

The  States  recognized  International!}'. 

acknowledged  by  foreign  powers  as  sovereign,  particularly 
in  that  acceptation  of  the  term  which  is  applicable  to  all 
great  national  concerns  and  in  the  exercise  of  which  other 
sovereigns  would  be  more  immediately  interested." 

This,  as  I  understand  the  action  of  other  countries,  is 
true,  if  the  meaning  is  what  I  understand  it  to  be,  from 
the  words  and  the  syntax,  —  that  the  States  united,  acting 
through  Congress,  or  "under  Congress,"  as  their  chosen 
leader  or  general,  proclaimed  themselves  "  collectively," 
though  not  "  individually,"  a  sovereign  in  war  and  peace, 
and  were  so  recognized. ^ 

The  question  here  is  not,  who  the  person  or  persons  are 
whom  foreign  nations  ought  to  recognize  as  the  sovereign. 
That  question  has  formerly  come  up,  and  may  come  up 
again.  Whenever  it  might  so  come  up  for  the  consideration 
of  foreign  nations  themselves,   the   opinions  of  our  text- 

1  This  opinion  hy  Judge  Patterson  in  Penhallow  v.  Doane  is  generally 
cited  as  having  a  directly  opposite  meaning,  that  is,  as  affirming  that  the 
States  were  not  recognized  at  all  hy  foreign  powers;  or  that  foreign  powers 
knew  only  of  a  "congress,"  or  general  government,  as  holding  sovereign 
power.  It  is  true  that  the  passage  above  cited  follows  others,  in  the  same 
opinion,  which  attribute  the  possession  of  sovereign  powers  to  Congress,  by 
"  the  will  of  the  people."  Story  has  given  these,  with  the  passage  above 
cited,  as  agreeing  with  the  extracts  which  he  makes  from  Judge  Jay'a 
opinion  in  Chisholm  v.  Georgia,  2  Dall.  470,  and  Judge  Cliase's  in  Ware 
V.  Hylton,  3  Dall.  199,  which  last  affirms  that  Congress,  in  distinction  from 
the  States  and  by  "the  acquiescence  and  obedience  of  the  people,  .  .  .  prop- 
erly possessed  the  rights  of  external  sovereignty." 

Tiiese  dicta  of  our  earliest  courts  are  given  by  Judge  Story  as  sustaining 
his  statement,  Comm.  §  214.  "  Wiiatever,  then,  may  be  the  theories  of  in- 
genious men  on  the  subject,  it  is  historically  true  that  before  the  declaration 
of  independence  these  colonies  were  not,  in  any  absolute  sense,  sovereign 
States;  that  that  event  did  not  find  them  or  make  them  such;  but  that  at 
the  moment  of  their  separation  they  wore  under  the  dominion  of  a  superior 
controlling  national  government,  whose  powers  were  vested  in  and  exercised 
by  the  general  congress  with  tiie  consent  of  the  people  of  all  the  States." 
Judge  Story  never  defined  for  the  benefit  of  his  readers  his  own  understand- 
ing of  the  term  (comp.  ante,  p.  109),  and  whether  these  judicial  statements 
of  history  are  properly  cited  by  him  depends  mainly  on  the  question  wlio 
are  the  persons  intended  by  the  words,  "the  people,"  "the  people  of  tlio 
United  States." 


THEORY  OF   OUR   NATIONAL  EXISTENCE.  317 

The  States  recognized  Internationally. 

writers  and  the  dicta  of  our  judges  would  undoubtedly 
receive  from  them  due  consideration.  But  the  question 
here  is,  who  the  person  o?  persons  here  are  whom,  having 
considered  the  question,  foreign  nations  do  so  recognize. 
If -we  want  to  see  ourselves  as  others  see  us,  we  must  go  to 
them  and  ask  them  what  they  see.  We  must  apply  to  their 
publicists  ^  and  to  their  courts  sitting  on  international 
questions. 

In  the  case  (1867)  United  States  of  America  v.  Wagner, 
3  Law  Rep.,  Equity  Cases,  724,  "  the  defendants  put  in  a 
general  demurrer,  raising  the  j)reliminary  objection  that 
the  bill  was  filed  in  the  name  of  the  United  States  of 
America,  without  putting  forward  the  President  or  any 
individual  state  officer  upon  whom  process  could  be  served 
on  behalf  of  the  defendant,  or  who  could  be  called  upon 
to  give  discovery  to  a  cr^ss-bill  filed  by  the  defendant." 

It  was  argued  by  Sir  Roundell  Palmer,  and  other  counsel 
on  behalf  of  the  United  States, — 

"  That  if  the  bill  had  been  filed  by  the  Government  of  the  United 
States,  or  by  the  President,  as  chief  of  the  executive,  it  must  have 
been  held  to  be  a  description  which  the  court  could  not  recognize, 
as  Her  Majesty  knows  no  such  foreign  power  as  '  the  Government 
of  the  United  States,'  the  treaties  being  in  all  instances  with  the 
<  United  States  of  America'  simpUciter ;  and  under  that  title  alone, 
which  is  officially  recognized  in  this  country,  can  the  United  States 
sue  in  the  courts  of  this  country." 

The  vice-chancellor.  Sir  W.  Page  Wood,  held  the  bill  to 
be  properly  brought  in  the  name  of  the  United  States, 
though  he  ruled  that  "  when  the  United  States  sue  as 
plaintiffs,  they  must  let  the  defendant  know  from  whom 
he  can  obtain  discovery  and  who  is  the  proper  officer  to 
put  forward,  if  that  be  his  mind  or  desire"  {ih.  786),  and 

1  Compare  ante,  p.  138,  n.  2,  and  citation  from  Phillimore's  International 
Law.  In  the  same  work  the  author  notes  Wheaton,  Story,  and  Kent,  as 
authors  to  be  consulted  for  a  general  view  of  the  position  of  the  United 
States  as  one  state  in  international  relations,  ib.  §§  118,  120. 


318  THE   PLACE   OF   SOVEREIGNTY. 

The  United  States  in  an  English  Court. 

sustained  the  demurrer,  allowing,  however,  the  plaintiffs  to 
file  an  amended  bill  in  accordance  with  his  ruling.  In  the 
Opinion  delivered  at  the  same  time  the  vice-chancellor  said 
(ih.  730),  — 

"Those  who  followed  Mr.  James  [for  the  defendant],  went 
further  and  said  that  '  the  United  States  of  America '  were  to  be 
regarded  here,  not  as  the  great  and  powerful  sovereign  community 
which  they  are,  but  simply  as  a  geographical  expression.  Of 
course,  any  such  notion  would  be  preposterous,  but  I  was  ))leased, 
in  the  original  treaty  between  the  sovereign  of  this  country  and 
the  United  States,  to  find  an  expression  which  better  meets  my 
views  than  any  words  which  I  could  use.  The  great  and  definitive 
treaty  of  peace  and  friendship  signed  at  Paris,  on  the  3d  of  Sep- 
tember, 1783,  between  'His  Britannic  Majesty  and  the  United 
States  of  America'  commences  as  follows,"  etc.-'  The  vice-chan- 
cellor also  said  (ib.  731),  "The  question,  then,  is  whether,  being 
a  body  politic  (I  cannot  call  them  a  corporation,  for  although  in 
some  respects  the  analogy  may  apply^Mn  others  it  fiiils  entirely)  the 
United  States  can  sue  simply  in  that  name,  without  naming  any 
person  to  act  in  their  behalf,"  etc.^ 

1  The  vice-chancellor  recited  the  preamble  only,  in  which  occur  the 
words,  "  It  having  pleased  the  Divine  Providence  to  dispose  the  liearts  of 
the  most  serene  and  most  potent  Prince  George  III.,"  &c.,  "  and  of  the 
United  States  of  America  to  forget  all  past,"  &e.,  &c.  The  language  of  the 
first  article  is  more  directly  to  the  point,  reading,  "  His  Britannic  Majesty 
acknowledges  the  said  United  States,  viz.,  New  Hampshire,  Massachusetts 
Bay,"  and  the  others  by  name,  "  to  be  free,  sovereign,  and  independent 
states,  that  he  treats  with  them  as  such,"  &c. 

It  may  be  proper  in  tliis  connection  to  notice  that  the  term  "  the  people 
of  the  United  States  "  does  occur,  once,  in  this  treaty,  that  is,  in  Art.  iii., — 
"It  is  agreed  that  the  people  of  the  United  States  shall  continue  to  enjoy 
unmolested  the  right  to  take  fish  of  every  kind,  on  "  &c.  Whetlicr  the  peo- 
ple are  to  go  a-fishing  as  a  sovereign  nation  or  as  sovereign  states  or  as  in- 
dividually sovereign  fishermen  is  not  stated. 

2  The  vice-chancellor's  idea  is  made  still  clearer  by  a  passage  in  the 
same  opinion  (ih.  734),  where  he  refers  to  other  treaties  between  the 
sovereign  of  Great  Britain  and  Ireland  and  the  United  States  of  America, 
and  contrasts  their  terms  witii  those  of  the  treaty  made  November,  1851,  read- 
ing, "  Her  Britannic  Majesty  and  the  President  of  the  French  Kepublic  have 
deemed  it  expedient  to  conclude  a  special  convention."  He  says,  "In  that 
Ciise  I  apprehend  it  is  clear  that  the  President  of  the  French  Pcpublic  was 
the  person  autliorized  to  deal  in  all  transactions  with  this  country  on  behalf 
of  himself  and  the  whole  body  in  respect  of  whose  interests  he  treats." 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  319 

The  Place  of  the  States  in  History. 

The  same  question  in  another  form  was  presented  to  the 
same  court  in  Prioleau  v.  The  United  States  of  America, 
and  Andrew  Johnson  (July,  1866,  2  Law  Rep.,  Equity- 
cases,  659),  on  a  cross  bill  (see  the  case  of  the  United 
States,  etc.,  v.  Prioleau,  ante,  261,  n.)  to  have  the  President 
made  a  party  to  the  suit,  for  the  purpose  of  being  called  to 
produce  evidence.  The  same  judge,  Sir  W.  Page  Wood, 
V.  C,  heard  the  case  and  dismissed  the  bill.^ 

This  fact,  then,  that  the  States  were  free  and  independent 
onI>/  in  union,  while,  in  union,  t/ie^/  were  free  and  inde- 
pendent, was,  for  our  predecessors  of  a  century  ago,  their 
constitution  as-  fact?  As  fact,  they  left  it  for  us,  whether 
we  may  wish  it  should  have  been  otherwise  or  not,  for,  as 
Mr.  Lincoln  once  said,  "  We  cannot  escape  history."  ^ 

They  left  it,  however,  for  us  only  as  far  as  they  could. 
They  lived  and  had  their  day  ;  and  we  live  and  have  our 
day,  as  those  who  come  after  us  will  have  theirs. 

From  the  general  review  in  these  pages  of  the  action  of 
the  Government  in  reference  to  the  attempted  secession  of 
eleven  States  and  the  action  of  Congress  in  reconstruction, 
it  may  sufficiently  appear  that  such  action  has  had  general 


1  In  this  case  the  vice-chancellor  said  [ih.  665),  "  What  there  is  to  be  done 
in  the  case  of  a  bill  filed  by  a  political  body,  such  as  the  United  States  (not 
a  pliysical,  but  a  metaphysical  entity),  proceeding  as  a  sovereign  state  and 
endeavoring  to  assert  its  rights  in  this  country  ?  "  If  this  conception  should 
be  thouglit  singular,  especially  in  connection  with  the  opinions  in  tlie  cases 
mentioned  above,  it  is  not  any  more  so  than  that  of  American  text-writers 
who  ignore  the  political  people  of  each  State  as  constituting  the  State,  and  who 
find  the  States,  as  well  as  the  nation,  by  hypothesis  [ante,  p.  110-114).  In  the 
United  States  v.  Prioleau  (2  Hemming  and  Miller,  p.  559),  Sir  W.  Page  Wood 
said,  "  Certain  of  the  component  States  of  the  United  States  of  America 
having  seceded  and  established  a  de  facto  government  under  the  style  of  the 
Confederate  States  of  America,"  etc.  Would  the  vice-chancellor  say  that  a 
metaphysical  entity  can  divide  itself,  or  be  divided  by  secession  of  its  parts'? 

2  Ante,  p.  130.  From  the  reference  made  by  the  vice-chancellor  it  would 
appear  that  the  English  courts  in  1867  were  not  aware  of  any  change  in  tht 
political  constitution  of  the  United  States  since  the  treaty  of  1783. 

3  Conclusion  of  Message,  Dec.  1,  ^862.     Macpherson,  Hist,  p.  224. 


320  THE   PLACE   OF   SOVEREIGNTY. 

The  Position  of  the  Supreme  Court. 

support  only  on  one  or  the  other  of  two  theories  of  public 
law,  either,  — 

1.  The  theory  of  an  international  war  and  a  conquest  as 
of  states  previously  independent  of  the  conqueror  ;  or, 

2.  The  theory  of  a  sovereign  government,  suppressing  a 
rebellion  of  States  against  itself,  and  restoring  them,  as  its 
subjects,  to  their  former  "  proper  practical  relations." 

It  is  very  possible  that  most  of  the  opinions  delivered  by 
the  several  members  of  the  Supreme  Court  which  relate  to 
the  status  of  these  States,  in  the  interval  between  the  date 
of  their  ordinances  of  secession  and  their  final  reconstruc- 
tion, might  be  classified  or  discriminated,  as  accepting, 
more  or  less  distinctly,  one  or  the  other  of  these  two  views, 
,  as  above  stated,  or  perhaps  some  modification  of  them, 
which  might  be  stated  as,  — 

1.  A  view  regarding  these  States,  tliough  in  the  Union, 
as  subject,  for  the  time  being,  to  the  international  law  of 
war,  applied  by  the  victorious  government ;  or, 

2.  A  view  founded  on  the  idea  of  a  usurping  govern- 
ment, misrepresenting  a  State,  supposed  to  have  been  ready, 
except  as  prevented  by  force,  to  comply  with  the  pro- 
visions of  the  Constitution,  which,  under  this  view,  was  re- 
garded as  a  Imv,  acting  on  the  States  as  its  subjects,  to  be 
administered  by  the  general  government,  not  as  representing 
States  voluntarily/  united,  but  a  nation  or  people,  to  which 
the  States  were  supposed  to  owe  allegiance. 

However  convenient  the  first  view  or  theory  may  have 
been  found  by  the  court  to  settle  cases  arising  from  the 
war  itself,  such  as  prize  cases, ^  and  the  so-called  confiscation 
cases  ^  it  can  hardly  be  said  that  a  majority  of  the  judges 
have  carried  out  this  view  as  a  solution  of  the  status 
of  the  States  on  the  suppression  of  tlie  liebelhon.  That 
question,  indeed,  the  court,  as  a  whole,  has  left  for  "tlie 
political  department "  to  grapple  with.     Or,  so  far  as  the 

1  Ante,  pp.  49,  168.  2  Ante,  pp.  62,  174. 


THEORY   OF  OUR  NATIONAL  EXISTENCE.  321 

The  Position  of  the  Supreme  Court. 

court  has  indicated  a  solution  of  the  question,  it  was  ap- 
parent, at  and  since  the  reconstruction  era,  that  the  idea 
of  the  written  constitution  acting  as  law  on  the  States,^ 
and  compelling  them  to  be,  to  do,  and  to  suffer,  —  the 
idea  of  a  constitution  existing  by  its  own  force — the 
fetish  constitution  —  or  the  idea  of  a  constitution  existing 
by  the  will  of  a  nation  or  people  which  came  into  existence 
by  this  constitution,  in  virtue  of  which  a  body  of  elected 
delegates  called  the  government  may  wield  sovereign  powers 
as  if  inherent  in  themselves  personally,  —  was  the  idea 
relied  on  by  the  Supreme  Court  to  escape  the  question, 
What  is  a  State  of  the  United  States  ? 

It  maybe  fair  to  assume  that  in  this  matter,  the  "  loyal  " 
public,  or  the  public  which  supposes  itself  "loyal,"  with- 
out being  able  to  say  to  whom  it  is  "  loyal,"  and  the 
Supreme  Court  in  the  cases  which  have  hereinbefore  been 
referred  to,  have  relied  entirely  on  the  old  methods  of  dem- 
onstration already  indicated,^  viz.,  the  hypothesis  and  the 
unsustained  assertions  of  the  Story  and  Webster  school ; 
as  to  each  of  which,  whether  logically  tenable  or  not,  it 
is  known  that  they  had  utterly  failed  to  unite  opinions, 
before  the  war,  even  on  the  bench  itself,  or  to  command  a 
general  or  overwhelming  assent  elsewhere. 

I  hope  to  have  made  it  sufficiently  clear  that  the  main 
object  of  this  essay  has  been  to  show  that  history  furnishes 
a  theory  of  our  national  existence  which  could  justify  the 
action  of  the  government  in  resisting  secession,  as  rebellion, 
and  also  support  the  action  of  Congress  in  reconstruction  ; 
and  that,  therefore,  even  if  it  were  possible  to  "  escape 
history "  and  make  out  a  different  location  of  sovereign 
power  in  the  past,  the  effort  to  do  so,  on  the  part  of  the 
judiciary  and  of  private  writers,  has,  as  far  as  these  matters 
were  concerned,  been  entirely  superfluous. 

1  Ante,  pp.  9-23,  211-215. 

2  Ante,  p.  309. 


322  THE   PLACE   OF   SOVEREIGNTY. 

The  Question  of  Today. 

But,  as  already  stated,i  whatever  the  truth  may  be  as  to 
the  past,  this  question  of  fact  as  to  the  location  of  sover- 
eign power  is  always  essentially  a  question  of  the  passing 
day.  History  does  not  prove  anything,  except  as  there  is 
a  presumption  that  what  existed  yesterday  has  continued 
to  the  present  moment ;  ^  and,  for  us,  history  which  "  we 
cannot  escape  "  is  alwa3's  beginning. 

The  question,  then,  in  the  method  of  inquiry  followed  in 
this  essay,  is,  now  as  ever.  Where  do  the  great  undisputed 
majority  of  the  inhabitants  of  this  country  to-day  find 
their  ultimate  sovereign  ? 

This  question  is  here  put  simply  in  a  search  for  evidence  ; 
on  the  principle  or  axiom  stated  by  Austin  :  — 

"  If  a  determinate  human  superior,  not  iu  the  habit  of  obedience 
to  a  like  superior,  receive  habitual  obedience  from  the  hdk  of  a 
given  society,  that  determinate  superior  is  sovereign  in  that  society, 
and  the  society  (including  the  superior)  is  a  society  political  and 
independent.  To  that  determinate  superior  the  other  members  of 
tJie  society  are  stibject,  or  on  that  determinate  superior  the  other 
members  of  the  society  are  dependent.  The  mutual  relation  which 
subsists  between  that  superior  and  them  may  be  styled  the  rela- 
tion of  sovereignty  and  subjection."^ 

In  applying  this  principle  or  axiom,  it  is  necessary  to 
fix  some  limit  in  the  use  of  the  word  "  habitual."  The 
word  includes  the  element  of  time,  as  well  as  that  of  action ; 
but  what  extent  of  time,  depends  on  the  nature  of  the 
action  to  be  known  as  "  habitual."  If  political  changes  in 
the  location  of  sovereignty  are  to  be  recognized  as  possi- 
ble, the  axiom  must  be  understood  as  admitting  that  thje 

1  Ante,  p.  285. 

2  On  the  general  principle  of  continuity,  compare  Pliilllmore's  International 
Law,  Part  ii.  c,  vii. 

3  Austin,  Province  of  Jurisprudence,  etc.,  Sixth  Lecture  ;  cite-d  in  1  Wool- 
sey's  Pol.  Science,  203.  This  search  for  evidence  is  entirely  distinct  from 
that  reference  of  government  to  the  consent  of  individual  natural  persona 
which  is  constantly  cropping  out  in  our  legal  and  political  literature. 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  323 

The  Question  of  To-day. 

"  habitual "  obedience  may  possibly  have  existed  only 
during  a  comparatively  short  space  of  time.  The  inquiry 
now  proposed  is  to  be  confined  to  the  present  time,^  as  an 
era  considered  to  have  begun  at  some  time  later  than  the 
passing  of  the  secession  ordinances  by  the  eleven  States, 
and  earlier  than  the  close  of  the  war  and  the  reconstruc- 
tion era. 

In  view  of  this  same  question,  I  have  already  argued 
that  if  the  general  public  will  regard  the  States  of  the 
Confederacy  as  having  been  belligerent  parties  up  to  the 
end  of  the  war,  then  the  States-rights  version  of  history 
was  good,  up  to  that  time,  and  the  Constitution  must  be 
taken  to  have  derived  its  authority  in  each  State  from  the 
consent  of  the  State  severally.^ 

1  A  similar  inquiry  might  of  course  he  framed  in  reference  to  an  era  in- 
cluding the  period  before  the  war,  as  by  Mr.  Jameson,  when,  after  citing 
with  approval,  Const.  Conv.  p.  18,  the  first  sentence  of  Austin's,  as  above 
quoted,  he  says  (p.  29),  "  What  political  body,  institution,  or  entity  is  there 
in  the  United  States,  not  in  the  habit  of  obedience  to  any  other  bod}-,  &c., 
which  receives  habitual  obedience  from  tiie  bulk  of  the  Union  but  the  people 
of  the  United  States  ?  It  certainly  is  not  the  States,  for  they  have  habitu- 
ally obeyed,  each  and  all  of  them,  the  people  of  the  United  States  ever 
since  the  latter  entered  into  a  union  as  one  people.  The  people  of  the 
United  States,  in  1789,  threw  the  existing  constitutions  of  the  several  States 
into  hotchpot,  and  repartitioned  amongst  those  bodies  the  powers  they  were 
thenceforth  to  exercise,  giving  a  portion  thereof  to  the  States,  a  portion  to 
the  general  government,  and  reserving  the  residue  to  themselves,  and  the 
States  have  Juibitually  conformed  to  the  edict  which  thus  curtailed  and  ascer- 
tained their  powers."  An  author  who  defines  "  the  people,"  as  Mr.  Jame- 
son does,  as  the  entire  mass  of  the  population,  and  who  is  endowed  with 
courage  enough  to  state  this  as  history,  is  impregnable.  Logically,  it  is  a 
petitio principii.  The  people,  with  his  definition,  is  no  "political  body,  insti- 
.tution,  or  entity  "  at  all. 

2  Aiitp,  p.  286.  An  inquiry  as  to  the  opinion  of  the  general  public  on 
the  present  location  of  sovereign  power  is  about  the  same  thing  as  asking, 
What  has  been  settled  by  the  war  1  using  an  ordinary  phrase.  I  have 
(ante,  p.  105)  pointed  out  how  the  success  of  the  Government  against  the 
rebellion  has  limited  judicial  inquiry  to  such  history  as  may  support  the 
action  of  the  Government  in  that  instance.  I  have  since  found  the  same 
idea  expressed  by  Mr.  Yeaman,  in  "  Study  of  Government,"  ch.  18,  §§  10, 
22,  23. 


324  THE   PLACE   OF   SOVEREIGNTY. 

The  Question  of  To-day. 

It  may  then,  perhaps,  be  asked  of  me,  If  the  general 
public  now  says  that  sovereign  power  is  noiv  held  by  the 
nation  as  a  whole,  as  a  mass  of  millions,  wh}-  not  say 
that  it  is  now  so  held,  that  the  Constitution  now  derives 
its  authority  from  such  nation ;  and  why  not,  each  one  of 
us  individually,  recognize  this,  no  matter  whether  it  had 
been  so  before  1861  or  not  ?  ^ 

The  readiest  answer  which  I  should  have  at  hand  for  a 
question  of  this  sort,  either  now  or  at  any  previous  time, 
would  be,  that  the  thing  asserted,  supposed,  or  imagined 
as  a  fact,  whether  asserted,  supposed,  or  imagined,  by  a 
few  or  by  many,  is  simply  a  moral  and  physical  impossi- 
bility. 

Mr.  Pomeroy,  in  his  treatise  on  Constitutional  Law, 
§  37,  has  remarked,  — 

"The  distinction  must  be  carefully  and  constantly  preserved 
between  the  nation  and  the  government  which  that  nation  has 
actively  created  or  passively  permitted,  as  the  agent  for  the  expres- 
sion of  its  supreme  will.  The  people  themselves,  the  entire  mass 
of  persons  who  compose  the  iDolitical  society,  are  the  true  nation, 
the  final,  permanent  depositary  of  all  power.  The  organized 
government,  whatever  may  be  its  form  and  character,  is  but  the 

1  Notwitlistanding  the  copious  assertion  by  many  that  their  view  of  the 
present  location  of  sovereign  power  rests  on  the  historical  record,  beginning 
in  1776,  it  might  be  suspected  that  some  writers  would  not  object  to  get 
support  from  the  proposition  above  stated.  Mr.  I'omeroy,  Const.  Law, 
after  stating  (§§  28-33)  three  different  theories,  the  first,  that  of  a  supreme 
nation  or  people;  the  second,  the  state  sovereignty  theory;  the  third,  tiiat 
of  a  division  of  sovereignty,  says  (§  34),  "Among  the  leading  supporters  of 
the  last  theory  may  be  named  Madison  and  Jackson.  It  also  lies  at  the 
basis  of  the  judgments  of  the  Supreme  Court  upon  constitutional  questions 
rendered  during  the  presidency  of  Chief-Justice  Taney.  It  had,  perliaps, 
been  adopted  by  a  very  large  portion,  if  not  indeed  by  a  majority  of  poli- 
ticians. The  events  of  the  last  six  years  [before  18t)8|,  and  especially  tliose 
growing  out  of  the  close  of  the  war,  and  the  readjustment  of  disturbed  rela- 
tions, would  seem  to  have  brought  the  first  theory  into  greater  prominence ; 
and  it  may  probably  become  the  one  accepted  by  the  government  and  the 
people."  But,  if  this  general  acceptance  is  the  test,  what  is  the  value  of  all 
the  argument  from  history  and  the  nature  of  things  1 


THEORY  OF  OUR   NATIONAL  EXISTENCE.  325 

The  Question  of  To-day. 

ci'eature  aud  servant  of   this  political  unit  which  alone  possesses 
dominion  in  itself." 

The  term  "  political  society  "  involves,  I  think,  as  gen- 
erally used,  some  discrimination,  from  the  entire  mass  of 
inhabitants,  of  certain  persons  as  holding  the  supreme 
power,  or  as  being  the  "  political  unit  which  alone  posses- 
ses dominion  in  itself."  Where  there  are  no  such  persons 
distinguishable  from  "  the  entire  mass  of  persons  "  in  any 
geographical  area,  there  is  no  "  political  society  "  at  all, 
as  I  should  understand  the  phrase. 

1  have  herein  already  indicated  the  importance  of  dis- 
tinguishing between  the  natural  persons  constituting  the 
governments  existing  in  the  United  States,  both  general 
and  State  governments,  and  those  whom  I  have  recog- 
nized as  being  in  actual  existence  as  original  power- 
holders.-^  But  I  understand  Mr.  Pomeroy  and  other 
recent  writers  ^  to  mean  that  this  original  power-holder 
or  "  unit  which  alone  possesses  dominion  in  itself ''  is  dis- 
cernible, by  themselves  at  least,  in  the  entire  population 
of  this  country,  as  so  many  thousands  or  millions  of  indi- 
viduals, without  distinction  of  birth-place,  age,  sex,  race, 
and  especially  without  any  reference  to  the  possession  of 
any  elective  franchise,  under  any  law,  whether  of  the 
States  or  of  the  general  Government,  or  in  the  written 
Constitution,  and  to  hold  that  this  body  of  persons,  called 

Ante,  p.  303. 

2  Jameson's  Constitutional  Convention,  passim.  "  Conceding,  then,  that 
we  are  a  nation,  the  answer  to  the  question  with  which  we  started  some 
pages  back  —  Where  resides  the  sovereignty  in  the  United  States  ?  —  is 
ready  to  our  hand.  It  resides  and  must  reside  in  the  nation,  considered  as  a 
political  society  or  body  corporate.  Back  of  all  the  State*  and  all  forms  of 
government,  in  either  the  States  or  the  Union,  we  are  to  conceive  of  the 
NATION,  a  political  body,  one  and  indivisible,  made  up  of  citizens  of  the 
United  States  without  distinction  of  age,  sex,  color,  or  condition  in  life.  In 
this  vast  body,  as  a  corporate  unit,  dwells  the  ultimate  power  denominated 
sovereignty."  lb.  §  51.  That  which,  according  to  Mr.  Jameson,  "  we  are 
to  conceive  "  is,  to  my  mind,  not  conceivable. 


326  THE  PLACE  OF   SOVEREIGNTY. 

Mr.  Jameson's  Idea  of  a  sovereign  Nation. 

by  them  a  nation,  has  "  actively  created  or  passively  per- 
mitted "  some  government  by  a  few  "  as  the  agent  for  the 
expression  of  its  supreme  will." 

I  have  in  another  place  in  this  essay  already  noticed  Mr. 
Pomeroy's  and  iNIr.  Jameson's  references  to  Dr.  Brown- 
son's  and  my  own  view  of  the  investiture  of  sovereignty  in 
the  political  people  of  the  United  States,^  and,  when  citing 
Mr.  Austin's  language  on  that  subject,  I  have  also  noted 
Mr.  Jameson's  objection  to  the  view  conveyed  by  it.^ 

I  here  copy  Mr.  Jameson's  remarks  in  that  connection, 
not  only  to  acknowledge  his  generous  allusion  to  myself, 
but  also  because  they  present  distinctly  the  difference  of 
opinion  on  a  question  of  fact  which,  in  my  own  judgment, 
is  the  fundamental  question  for  the  future  in  the  politics 
of  the  country. 

After  citing  Mr.  Austin's  language,  Mr.  Jameson  ob- 
serves, — 

"  There  is,  perhaps,  some  ambiguity  in  this  passage,  as  it  is  not 
clear  whether,  by  the  body  of  the  citizens  of  a  State  '  which  ap- 
points its  ordinary  legislature,'  the  author  means  the  totality  of  its 
citizens,  forming  a  corporate  unit,  which,  '  the  union  apart '  virlu- 
ally  appoints  the  legislature,  or  the  body  of  the  electors  which 
immediately  and  formally  appoints  it.  If  the  former  was  intended, 
his  theory  was  clearly  what  I  have  supposed  above  [that  is  the 
theory  maintained  by  Mr.  Jameson  himself]  ;  if  the  latter,  it  was 
the  wholly  untenable  one,  that  sovereignty  in  the  United  States 
inheres  in  the  electors  or  voting  people  of  the  respective  States, 
considered  '  as  forming  a  collective  whole,' — a  theory  which  has 
the  sanction  of  so  eminent  an  authority  as  Mr.  Hurd."  * 

A  supreme  lawgiver,  of  whom  it  can  never  be  known 
when  or  how  or  where  he  is  saying,  willing,  or  tliiiiking 

1  Ante,  pp.  127,  128.  2  ^nte,  p.  140,  n. 

8  Const.  Conv.,  §  60,  with  reference  in  note  to  Law  of  Freedom  and 
Bondage,  Vol.  I.,  §  343,  note  2.  In  §  61  Mr.  Jameson  cites  Brownson's  state- 
ment (Am.  Rep.  pp.  220,  221  nnle,  p.  135,  n)  of  the  doctrine  wliich  lie  desig- 
nates as  "  wholly  untenable."  This  doctrine  has  been  clearly  and  forcibly 
expressed  in  Bateman's  Political  and  Constitutional  Law,  §§  92,  93. 


THEORY   OF   OTJR   NATIONAL   EXISTENCE.  327 

Mr.  Pomeroy's  Idea  of  a  sovereign  Nation. 

anything,  who  is  not  "  avaihable,"  not  "  come-at-able,"  to 
use  the  expression  of  an  English  writer,^  whose  legislative 
will  is  known  only  by  his  submission  to  the  decrees  of 
somebody  who  is  available  and  come-at-able,  is,  to  my  mind, 
no  lawgiver  at  all ;  and  a  sovereign  who  gives  no  law, 
and  yet  can  never  abdicate,  is,  to  my  mind,  no  sovereign.^ 

I  have  pursued  this  inquiry  with  the  assumption  that 
the  conditions  of  political  existence  must  be  the  same  for 
Americans  as  for  any  other  human  beings. 

Mr.  Pomeroy,  in  continuation,  says  of  his  doctrine,  — 

"  This  great  principle  of  human  rights  and  of  political  science, 
which  was  distinctly  announced  to  the  world,  and  first  practically 
acted  upon  by  our  own  forefathers,  and  which  is  theoretically  ad- 
mitted by  most  writers  on  Public  Law,  has  been  virtually  over- 
looked or  forgotten  by  many  supporters  of  the  '  State  Rights ' 
theory,  in  the  protracted  discussions  that  have  arisen  upon  the 
Constitution." 

That  which  is  here  called  a  "  great  principle  of  human 
rights  and  political  science,"  whether  it  be  true  or  false, 
has  no  value  for  determining  the  claims  of  "  the  State 
Rights  theory."  Somebody  will  have  to  discriminate  what 
assemblage  of  individuals  shall  be  taken  to  constitute  a 
people.      The  "principle  "  would  apply  just  as  well  to  the 


1  "  There  ought  to  be,  in  every  constitution,  an  available  authoritj'  some- 
where. The  sovereign  power  must  be  come-at-ahh.  And  the  English  have 
made  it  so."    Bagehot's  English  Constitution,  p.  162. 

2  Mr.  Jameson  says,  Const.  Conv.  p.  20,  "  A  true  sovereign  can  never 
voluntarily  abdicate  or  divest  itself  of  the  sovereignty."  Also,  "  Sovereignty 
is  inalienable ;  [Why,  then,  the  word  "  voluntarily  "  ?]  that  is,  '  society  never 
can  delegate  or  pledge  away  sovereignty.  .  .  .  Being  inherent,  naturally  and 
necessarily,  in  the  state,  it  cannot  pass  away  as  long  as  the  latter  exists.'" 
Citing  Lieber's  Pol.  Ethics.  I  understand  Lieber,  in  the  place  cited  (Book  ii. 
§  Ixiii),  to  be  merely  combating  the.  idea  that  the  individual  members  of 
society  or  of  the  state  are  each  sovereign  ;  and  so  Brownson's  Am.  Rep.  135, 
also  cited  by  Mr.  Jameson.  Dr.  Lieber's  "  society  "  or  "  state,"  had  no  geo- 
graphical limits,  and  his  attribution  of"  sovereignty  "to  it  has  not  the  slightest 
value  in  indicating  the  duty  of  a  private  citizen ;  which  I  take  to  be  the 
practical  test. 


828  THE   PLACE   OF   SOVEREIGNTY. 

Mr.  Pomeroy  on  the  Sovereignty  of  the  People. 

population  of  each  separate  State  as  it  could  to  the  popu- 
lation of  the  entire  country  geographically  known  as  the 
United  States.  That  is,  it  would  so  apply  if  all  reference 
to  a  historical  location  of  political  powers  is  left  out  of 
view. 

In  fact,  it  may  easily  be  shown  that  the  "  principle  " 
has  been  affirmed  and  appealed  to  for  support,  quite  as 
heartily  by  those  among  "  our  own  forefathers "  who 
maintained  the  several  sovereignty  of  each  State  as  it 
has  been  by  any  other  school  of  "  writers  on  public 
law."  1 

Mr.  Pomeroy  proceeds  to  say,  — 

"  The  intentional  ignoring  or  tacit  rejection  of  the  same  doc- 
trine is  the  fallacy  which  runs  through  the  whole  of  Mr.  Austin's 
elaborate  lecture  upon  the  nature  of  the  independent  political  soci- 
ety and  of  political  sovereignty,  found  in  the  first  volume  of  his 
'  Province  of  Jurisprudence,'  and  which  thus  destroys  much  of  the 
usefulness  of  that  treatise. 

"  It  is  certainly  unnecessary  for  Americans  to  argue  in  favor  of 
the  correctness  of  this  principle.  Our  whole  political  structure, 
our  whole  civilization,  is  based  upon  it.  So  true  is  it  to  nature 
and  humanity  that  not  only  have  European  publicists  adopted  it, 
but  even  the  European  governments  do  not  now  reject  it ;  and 
some  of  the  most  arbitrary  claim  to  wield  their  power  by  virtue  of 
an  authority  derived  from  its  practical  recognition.  The  idea  that 
the  rulers,  whether  one  or  many,  compose  the  state,  is  a  thing  of 
the  past,  a  notion  which  has  been  swept  away  in  the  resistless 
march  of  social  development." 

'  A  moflcrn  illustration  may  be  found  in  a  work  on  Politicil  and  Consti- 
tutional Law,  directed  specially  against  Mr.  Pomeroy's  treatise,  by  Mr.  W. 
0.  Batenian,  of  St.  Louis,  one  of  the  few  who  since  the  war  liave  written  in 
defence  of  State  sovereignty.  In  this  work  I  find  (§§  52,  53,  54)  the  same 
"  principle"  relied  on  and  the  same  judicial  opinions  (Iredell,  J.,  in  Penhallow 
V.  Doanc,  3  Dull.  94,  Chase,  J.,  in  Ware  v.  Hylton,  ib.  199)  which  are  referred 
to  as  authorities  by  other  authors,  making  a  directly  opposite  application. 
But  in  the  discussion  of  this  matter  such  citations  of  the  same  dicta  to  sup- 
port diametrically  opi)osite  views  are  by  no  means  uncommon.  Doctrine  and 
history  are  confusedly  mingled.     Compare  ante,  p.  99. 


THEOBY   OF  OUR  NATIONAL  EXISTENCE.  329 

Austin's  Distinction  of  the  Sovereign. 

Whether  "  the  idea  that  the  rulers  compose  the  state  " 
caa  be  justly  attributed  to  Austin  or  to  anybody  else  de- 
pends on  the  meaning  attached  to  the  word  "  state."  If 
the  word  is  taken  to  mean  the  person  or  persons  by  whose 
intelligent  will  and  action  law  exists  in  and  for  a  commu- 
nity within  certain  geographical  limits,  it  is  "  a  notion  " 
which  no  amount  of  "  social  development "  can  sweep 
away.  Austin's  proposition  was  not  that  the  rulers  com- 
pose the  state.  He,  at  least,  was  one  of  those  who  could 
not  conceive  of  a  state  consisting  of  nobody  but  rulers.^ 
Austin's  proposition  was,  simply,  that  there  must  be  some 
persons,  visibly,  tangibly,  audibly  distinguishable  —  dis- 
tinguishable by  the  bodily  senses  —  from  the  whole  com- 
munit}^  as  a  mass,  who,  as  matter  of  fact  and  sense,  —  not 
by  hypothesis  or  imagination,  not  merely  "  virtually,"  ^  — 
act  in  the  matter  of  making  law  without  reference  to  any 
similar  action  on  the  part  of  others  ;  and  that,  otherwise, 
there  is  no  state  or  political  community  to  be  recognized.^ 

1  That  "notion  "  belongs  to  a  different  school,  which,  though  it  appears 
to  have  had  a  resurrection  since  the  war,  was  in  greater  vigor  at  the  close  of 
the  last  century  with  some  of  "  our  own  forefathers."  Judge  Jay,  in  Chisholm 
V.  Georgia,  2  Dallas,  470,  said,  "  At  the  Revolution  the  sovereignty  devolved 
on  the  people,  and  they  are  truly  the  sovereigns  of  the  country ;  but  they 
are  sovereigns  without  subjects  (unless  the  African  slaves  among  us  may 
be  so-called),  and  have  none  to  govern  but  themselves.  The  citizens  of 
America  are  equal  as  fellow-citizens  and  joint  tenants  in  the  sovereignty." 
Wilson,  J.,  in  the  same  case  said,  "  Under  that  Constitution  there  are  citi- 
zens, but  no  subjects."  It  is  this  school  wliicii,  having  been  under  an  eclipse, 
now  sets  itself  up  to  justify  our  past  and  to  determine  our  future.  Com- 
pare ante,  p.  114. 

2  Mr.  Jameson's  term,  ante,  p.  326. 

8  The  author  of  the  well-known  treatise  on  Ancient  Law,  Dr.  Maine, 
in  a  paper  On  the  Conception  of  Sovereignty,  &c.,  says,  "  First,  then,  the 
human  superior,  who  is  to  be  sovereign,  must  be  determinate.  He  need  not  be 
a  single  person  or  monarch.  .  .  .  There  can  be  no  grosser  mistake  than  this, 
though  it  is  constantly  perpetrated  by  jurists  whose  place  of  birth  leads 
them  to  associate  '  sovereignty '  with  '  despotism,'  and  who  are  perpetually 
committing  themselves  to  propositions  wliich,  if  considered  rigorously,  would 
either  deny  the  existence  of  governments  like  our  own  and  that  of  the 
United  States,  or  at  all  events  brand  them  with  the  stigma  of  illegitimacy. 


330  THE   PLACE   OF   SOVEREIGNTY. 

Sovereignty  in  public  Opinion. 

Whether  the  persons  so  distinguishable  are  called  "  the 
government  "  or  "  the  sovereign,"  or  "  the  supreme  j)ow- 
er,"  or  are  designated  by  any  other  name,  the  fact  is 
always  and  necessarily  the  same. 

There  are  probably  many  who  would  say  that  "  the 
'  sovereignty  of  the  people  '  means  neither  more  nor  less 
than  the  admission  that  in  civilized  countries  the  govern- 
ment exists  for  and  ought  to  be,  in  the  main,  carried  on  in 
obedience  to  the  wishes  of  the  majority  of  the  nation."  ^ 
Nobody  could  ever  question  that,  in  all  ages,  "  the  rulers," 
whether  few  or  many,  as  well  as  other  folks,  have  had  to 
accommodate  themselves  to  circumstances,  and  that  one 
very  material  circumstance  they  always  have  had  to  con- 
sider was  what  the  people  they  ruled,  or  at  least  some  por- 
tion of  that  people,  thought  right  and  proper,  or,  at  least, 
for  their  own  interest  in  their  day  and  generation.  Nobody 
now  questions  that,  as  civilization  has  extended  with  "  the 
resistless  march  of  social  development "  as  Mr.  Pomeroy 
says,  the  portion  of  the  people  who  can  frame  and  express 
a  judgment  as  to  what  is  right  and  proper,  or  what  is  for 
their  own  interest,  becomes  relatively  larger  ;  wdiile  their 
judgment  becomes  more  and  more  easily  discernible  by 
those  who  rule. 

It  is  true  enough  that  such  "  a  principle,  if  it  be,  like 
every  other  principle,  but  imperfectly  obeyed,  certainly  is. 

Nor,  again,  can  '  sovereignty  '  be  said  to  reside  in  the  entire  community,  —  an 
error  the  exact  opposite  of  the  misapprehension  just  alluded  to,  and  one  to 
which  French  writers  on  public  law  seem  especially  liable.  Their  meaning 
may,  perhaps,  be  that  no  body  of  individuals,  except  the  entirety  of  the 
people,  oi/r//(^  to  be  recognized  as  superior;  but  a  dogma  like  this  is  some- 
thing very  different  from  the  statement  of  a  fact ;  and  the  truth  is,  that  no 
government  corresponding  with  the  description  exists  in  the  world.  All 
polities  are  either  monarckies  or  oligarchies,  since,  even  in  the  most  popular, 
women  and  minors  are  excluded  from  political  functions."  Papers,  &c., 
Juridical  Soc.  Vol.  I,  Part  i.,  London,  1855,  p.  30. 

1  Quotation  from  a  letter  of  A.  V.  Dicey  to  The  Nation,  No.  789. 
Aug.  12,  1880. 


THEORY  OF   OUR  NATIONAL  EXISTENCE.  381 

Public  Opinion  distinct  from  Sovereignty. 

through  the  greater  part  of  Europe,  as  in  the  United 
States,  a  recognized  axiom  of  government."  ^  But  the 
*'  axiom  "  has  a  very  different  significance  for  governments 
where  the  rulers  are  a  few,  individually  distinct  from  the 
persons  ruled,  as  in  "  the  greater  part  of  Europe,"  and 
for  governments  where  those  who,  being  collectively  the 
rulers,  are  individually  a  large  part  of  the  persons  ruled, 
as  is  the  case  in  the  United  States.  It  is  only  in  the  first 
of  these  instances  that  public  opinion,  as  a  power  against 
the  government,  or  constraining  the  government,  can  be 
said  to  have  much  force.  In  .a  theoretically  perfect  de- 
mocracy, public  opinion  and  the  opinion  of  the  governing 
body  must  be  one  and  the  same  thing.  There  is,  there- 
fore, less  room  for  manifestation  of  public  opinion  as 
against  the  governmen.t  here  than  under  the  arbitrary  gov- 
ernments of  Europe.  It  may  be  said  with  truth  that  "  its 
power  is,  in  fact,  most  observable  in  states  which  do  not 
possess  democratic  institutions."  ^ 

A  representative  government  being  dependent  for  its 
existence  on  the  will  of  a  majority  of  the  electors,  a  public 
opinion  opposed  to  that  government  must  be  supposed  to 
be  adverse  to  the  wishes  of  this  majority.  Such  a  public 
opinion  could  be  found  only  in  the  wishes  of  others  who 
are  not  electors,  or  of  a  majority  of  such ;  agreeing,  per- 
haps, with  the  wishes  of  a  minority  of  the  electors.  To 
find  a  manifestation  of  "  sovereignty "  in  a  public  opinion 
based  on  such  a  calculation  of  numbers  is  to  elevate  faction 
into  an  institution  of  government.     The  most  obvious  hope 

1  Mr.  Dicey's  letter.  For  these  reasons  I  should  say  that  public  opinion 
was  the  manifestation  of  the  very  opposite  of  sovereignty  instead  of  being 
one  of  its  marks  or  manifestaticms,  as  said  by  Mr.  Jameson,  Const.  Conv. 
p.  22,  and  by  Lieber,  Pol.  Ethics,  Book  ii.,  §  65.  Lieber  quotes  Napoleon 
and  Talleyrand  as  recognizing  its  force  as  superior  to  their  own  plans  or 
purposes,  which  I  regard  as  illustrating  how  distinct  public  opinion  is  from 
political  sovereignty. 

2  Mr.  Dicey's  letter. 


332  THE  PLACE   OF   SOVEREIGNTY. 

Public  Opinion  in  distinct  political  Bodies. 

offered  by  democratic  institutions  is  to  exclude  such  mani- 
festations, by  rendering  them  practically  useless.^ 

Even  when  the  significance  of  "  popular  sovereignty " 
is  reduced  to  that  of  "  public  opinion,"  as  an  equivalent 
term,  the  question  in  our  case  is  of  identifying  "the  peo- 
ple "  whose  "  opinion,"  or  "  sovereignty,"  in  that  sense,  is 
to  be  obeyed.  And  this  can  only  be  determined  by  first 
determining  a  political  fact.  A  States-right  publicist 
might  admit  that  the  States,  meaning  both  their  govern- 
ments and  the  organized  political  people,  ought  to  adapt 
their  political  energies  to  enlightened  public  opinion 
definitely  expressed.  He  would  probably  concede  that,  in 
the  exercise  of  powers  confided  by  the  States,  as  he  would 
say,  to  the  general  Government,  it  should  be  guided  by  the 
public  opinion  of  the  whole  country,  including  Territories 
as  well  as  States ;  but  he  might  reasonably  demur,  if  told 
that,  in  the  exercise  of  other  powers  not  so  entrusted  to 
the  general  Government,  the  State  governments  or  the 
State  electoral  bodies  were  under  an  obligation  to  disre- 
gard the  general  wishes  of  the  inhabitants  of  the  State 
and  look  to  the  public  opinion  of  the  people  of  the  whole 
country,  without  regard  to  State  limits.  He  might  justly 
say  that,  whether  that  was  or  was  not  a  good  way  of  carry- 
ing on  a  government,  it  was  at  least  diametrically  opposed 
to  the  theory  of  freedom  with  government  bequeathed  by 
our  fathers  which  we  had  for  a  century  been  boastfully 
holding  up  for  the  admiration  and  imitation  of  the  world. 

But  this  reduction  of  popular  sovereignty  to  the  mere 
force  of  public  opinion  would  not  content  those  writers 
whose  views  I  have  been  considering.      If  this  were  all 

1  However  ninch  sovereignty  Lieber  may  have  recognized  in  public  opin- 
ion he  could  say,  "  The  citizen  ought  not  to  be  subject  to  .  .  .  the  dictation 
of  mobs,  nor  any  people  who  claim  to  be  the  people  ;  indeed,  to  no  dictates 
of  the  people  except  in  its  political,  that  is,  its  organized  and  organic 
capacity."     Civil  Liberty,  &c.,  p.  109. 


THEORY  OF   OUR  NATIONAL  EXISTENCE.  333 

Usurpation  under  popular  Sovereignty. 

they  understand  by  attributing  political  sovereignty  to  the 
peoj^le  of  the  country  as  a  mass  of  population,  there  would 
be  only  a  verbal  controversy,  of  which  it  might  well  be 
said  that  it  could  have  no  material  consequence  in  the 
practical  politics  of  this  country.  Had  I  supposed  that 
this  was  all  that  could  ])e  inferred  from  their  words,  these 
pages  would  not  have  been  written. 

In  a  previous  chapter,  after  stating  the  proposition  that 
sovereignty  is  indivisible,  I  presented,  as  the  alternative 
for  courts  holding  the  judicial  power  of  the  United  States 
Government,  either  to  recognize,  in  the  history  of  the  past 
continuing  to  the  present  moment,  some  one  personality  or 
one  aggregate  of  personalities,  holding  sovereignty  as  a 
unit ;  or,  to  accept  secession  as  a  right,  before  1861,  and 
the  whole  action  of  the  general  Government  since  that  date 
as  usurpation,  now  legal  and  constitutional  only  as  by 
successful  revolution.^ 

Following  out  this  alternative,  I  further  maintain  that 
if,  in  justification  of  that  action  of  the  general  Govern- 
ment, the  courts  have  relied  on  a  supposed  possession  of 
sovereignty  by  the  people  or  nation  as  a  mass  of  popula- 
tion, that  is,  on  the  doctrine  of  the  sovereignty  of  the 
people  as  maintained  by  Mr.  Pomeroy  and  others,  instead 
of  recognizing  it  as  vested  in  the  political  peoples  of  the 
States  voluntarily  united,-  the  court  has  accepted  the  alter- 
native of  usurpation  by  the  general  Government. 

This  consequence  necessarily  arises  from  the  political 
truth  or  condition  of  political  life,  that  as  the  visible  exer- 
cise of  political  power  by  a  nation,  as  a  mass  of  individuals, 
is  a  moral  and  physical  impossibility,  some  assumption  of 
power,  in  the  name  of  the  sovereign  peoj^le  or  nation, 
is  the  only  possible  means  by  which  it  can,  even  in  name 
or  appearance,  be  exhibited.     So  far  as  such  sovereignty  is 

1  Ante,  p.  107. 

2  According  to  the  view  taken  herein,  ante,  p.  140. 


334  THE   PLACE   OF   SOVEREIGNTY. 

Usurpation  illustrated  in  American  History. 

thinkable,  it  is  with  the  thought  of  such  a  usurpation 
included. 

And  I  do  not  state  this  as  a  proposition  assumed  a  priori, 
but  as  a  generalization  established  from  many  instances  in 
political  history,  —  that  the  doctrine  of  popular  sovereignty, 
or  of  a  nation's  existence  without  the  investiture  of  tlie 
supreme  power  of  making  law  ^  in  some  hioum  person  or 
persons  who  are  not  the  whole  nation  as  a  mass  of  indi- 
viduals, always  brings  with  it  usurping  governments. 

Americans  will  not  have  to  go  far  to  find  such  instances, 
if  they  will  receive  the  history  of  their  own  country  as  it 
has  been  pictured  by  the  school  of  jurists  who  proclaim 
the  sovereign  multitude.  Mr.  J.  Q.  Adams's  discovery  of 
usurpation  by  the  States,  at  the  very  beginning  of  Avhat 
we  have  been  accustomed  to  call  their  independence,  and 
Mr.  Pomeroy's  and  Dr.  Mcllvaine's  further  exploitation  of 
it,  have  already  been  noticed.^  To  be  consistent,  in  hold- 
ing this  view  of  the  history,  one  should  also  affirm  that  no 
legitimate  government  has  yet  existed  in  this  country  since 
the  Revolution,  and  that  the  worshipped  Constitution  itself, 
especially,  was  estabhshed  by  an  act  of  usurpation,  sanc- 
tioned, as  far  as  might  be,  by  the  passive  obedience  of  the 
population,  —  the  usurpation  of  autliority,  that  is  to  say, 
by  the  organized  political  peoples  of  the  several  States, 
each  acting  as  a  corporate  body,  having  the  audacity  to 
vote  on  the  question  of  its  adoption. 

Mr.  Pomeroy,  in  illustrating  his  own  "  conception  of  the 

1  Die  Souveriinetat  der  Gesetzgcbung.     Ante,  p.  97. 

2  See  ante,  p.  124,  note  1.  The  objection  is  there  stated  against  the  action 
of  the  State  governments  in  the  Confederation.  But  I  do  not  see  why  it 
should  not  be  equally  applicable  against  the  adoption  of  the  Constitution  by 
the  electors  of  the  several  States.  The  explanation  which  is  ajjparently 
relied  on  is,  that  the  voters  in  all  the  States,  voting  as  State  electors,  acted 
as  rejiresentallrrs  for  the  people  of  the  whole  country.  But  nobody  has 
attempted  to  show  any  conscious  action  by  that  "  people"  appointing  them 
to  be  their-  representatives.     Compare  ante,  p.  111. 


THEORY   OF   OUR    NATIONAL   EXISTENCE.  335 

Usurpation  illustrated  in  French  History. 

imperial  character  of  the  people   as  an  orgauic  political 
society  "  by  a  parallel  sa^-s,  — 

"  Nor  is  the  thought  peculiar  to  our  own  social  condition  ;  it  is  a 
dogma  which  lies  at  the  base  of  all  political  science.  The  French 
nation  has  continued  one  and  the  same  while  its  government  has 
taken  the  successive  forms  of  Monarchy,  Republic,  Empire,  Mon- 
archy, Republic,  Empire  [Republic,  once  more]  again.  The 
several  forms  were,  for  the  time  being,  the  recognized  organs  and 
channels  for  the  utterance  and  execution  of  .the  organic  will  of  the 
people,  in  whom  alone,  as  the  final  source,  reside  all  the  attributes 
and  functions  of  legislation."  ^ 

As  I  understand  the  author,  he  asserts  that  the  principle 
that  sovereignty  inheres  in  the  nation  as  a  mass  was  main- 
tained and  illustrated  in  all  these  successive  changes,  each 
government  being  the  legitimate  instrument  of  the  will  of 
that  nation. 

No  more  striking  instances  for  the  generalization  above 
made  —  that  the  doctrine  or  assumption  of  the  sovereignty 
of  a  nation,  as  found  in  the  entire  mass  of  a  population, 
involves  usurpation  —  could  be  found  than  that  given  in 
France,  during  the  last  one  hundred  years,  by  the  persons 
controlling  at  various  times  the  government,  and  who  suc- 
cessively claimed  that  none  other  than  themselves  repre- 
sented the  nation.  Louis  XIV,  saying,  "  L'^tat,c'est  moi," 
only  said  the  same  thing.  "L'etat"  —  the  state  —  in  the 
language  of  his  time,  answered  exactly  to  the  idea  of  "  the 
nation,"  "  the  people,"    of   modern    France   and   of   this 

1  Const.  Law,  §  88.  It  seems  to  me  that  Mr.  Pomeroy  is  particularly 
unfortunate  in  his  illustrations  here.  He  gives  "  the  English  people  "  as 
affording  another  proof  of  his  theory.  Certainly  France  and  England  can- 
not both  be  good  as  examples.  Tiie  English  nation  has  never  asserted  the 
French  doctrine.  There  has  always  been  a  recognition  that  there  was  a 
portion  of  the  community  holding  the  supreme  power,  as  Mr.  Pomeroy  him- 
self proves  by  what  he  says,  (7;.  §  90.  If  mere  national  continuance  illus- 
trates "  sovereignty  of  the  people,"  why  not  take  China  1  We  do  not  know 
much  about  their  institutions;  but  the  Chinese  nation  has  existed  long 
enough. 


336  THE   PLACE   OF   SOVEREIGNTY. 

Our  Fathers  did  not  act  on  this  Theory. 

school  of  American  publicists.  The  only  variation  in 
France,  since  monarchical  centralization  supplanted  feudal 
distribution  of  sovereignty,^  has  been  in  the  number  of  the 
pronoun  of  the  first  person.  It  has  been  either  "  L'etat, 
c'est  moi  "  (Jam  the  state)  or,  " L'etat, c'est  nous  "  (  We  are 
the  state),  —  as  the  state  might  be  called  kingdom,  repub- 
lic, or  empire  ;  but  the  nation,  people,  or  state  was  equally 
active  or  passive  in  each  instance.^ 

It  is  true  enough,  as  has  often  been  said,  that  some  of 
the  most  arbitrary  governments  in  Europe  profess  to  rest  on 
the  idea  of  the  sovereignty  of  the  nation  or  people,  and  to 
act  only  in  obedience  to  the  will  of  such  nation  or  people. 
But  it  would  be  a  revelation  to  them  and  to  "  most  writers 
on  public  law"  to  be  told  that  they  had  derived  their 
ideas  on  this  matter  from  a  discovery  made  by  "  our  own 
forefathers  "  and  our  example,  if  that  is  what  Mr.  Pomeroy 
means.  If  I  understand  his  own  description,  in  the 
same  connection,  of  the  political  events  in  which  those 
forefathers  were  the  actors,  he  himself  makes  it  very  plain 
that,  whatever  philosophical  notions  they  may  have  had  on 
the  subject,^  they  did  not  act  on  any  such  theory  as  his, 
when  it  came  to  practical  statesmanship.  With  Dr.  Mc- 
Ilvaine  and  all  the  writers  of  the  same  school,  he  shows 
that,  in  action,  the  ideas  of  State  existence,  State  sover- 
eignty and  local  independence,  most  wrongfully,  as  they 

1  Ante,  p.  313. 

2  Compare  the  historical  summary  by  Professor  C.  K.  Adams,  —  Democ- 
racy and  IMonarchy  in  France.  Mr.  Pomeroy  in  another  place  speaks  of 
"  the  imperial  policy  of  consolidation  which  has  made  France  the  sport,  now 
of  a  despot,  and  now  of  a  mob,  at  Paris."     Const.  Law,  p.  70. 

3  The  fact  that  a  man's  political  philosophy  is  not  a  sure  indication  of  his 
statecraft  is  illustrated  by  Frederick  the  Great  of  Prussia  and  his  posthumous 
code,  which  might  have  served  as  a  model  for  the  French  Declaration  of 
Rights  of  1791.  An  analysis  is  given  in  note  to  De  Tocqueville's  Ancien 
Re'gime  et  la  Revolution,  p.  59.  The  same  author,  in  a  note  to  p.  2:57,  notices 
the  contempt  which  the  revolutionary  governments  in  France  manifested 
for  the  will  of  the  majority. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  837 

Question  as  to  an  American  Discovery 

declare,  carried  the  day.  All  these  writers  represent  the 
idea  of  nationality  as  a  growth  from  seed  generated  by  the 
Constitution,  not  as  its  cause  ;  but  they  now  propose  that 
the  effect  should  be  taken  to  have  retroacted,  and  be  pre- 
sented, historically,  as  being  its  own  author. 

Mr.  Curtis,  as  has  been  seen,  thinks  that  the  division  of 
sovereignty  between  the  States  and  the  general  Govern- 
ment was  the  thing  settled  by  the  war.^  Mr.  Pomeroy, 
Mr.  Jameson,  and  others  say  that  the  investiture  of  sover- 
eignty in  the  nation  as  a  mass  was  the  thing  so  settled.^ 
But  each  party  claims  that  the  thing  so  settled  was  "  an 
American  discovery,"  —  a  political  revelation,  made  by  our 
fathers  a  hundred  years  ago.  The  question  with  regard 
to  either  supposed  discovery  is  whether  it  is  a  possibility. 
Mr.  Curtis's  theory  may  be  original,  if  possible  ;  but  that 
of  Mr.  Pomeroy  and  his  school,  if  possible,  is  not  original. 
If  there  is  anything  in  our  political  methods  with  which 
we  can  posture  before  the  world  as  inventors,  it  is  not  this 
time-worn  pretext  for  despotic  governments. 

If  the  primary  political  fact  in  this  country  has  been 
and  now  is  that  sovereignty  was  and  is  vested  in  the 
political  peoples  of  the  States  united,  or,  in  other  words, 
if  the  term  "  We  the  people  of  the  United  States  "  in  the 
written  Constitution  has  indicated  and  now  indicates  those 
political  peoples  of  the  States  united,  —  the  connection 
between  this  people  and  that  Constitution,  as  the  law  rest- 
ing on  their  will,  together  with  all  legislative,  executive, 
and  judicial  action  of  the  general  Government,  is  apparent. 
This  connection  is  all  matter  of  record ;  as  clearly  as  the 
connection  between  the  known  residents  of  a  New  Eng- 
land township  and  the  action  of  a  town-constable  exe- 

1  Ante,  pp.  299,  304. 

2  What  is  to  become  of  Mr.  Webster  and  "  the  best  minds  in  New  Eng- 
land "  {ante,  p.  115,  note)  if  Mr.  Pomeroy  and  Mr.  Jameson  are  to  be  trusted  ? 
Must  it  be  supposed  that  "  the  best  minds  "  have  gone  West,  carrying  Mr. 
Webster  with  them  1 


338  THE   PLACE   OF   SOVEREIGNTY. 

The  People  connected  with  tlie  Constitution. 

cutiiig  their  resolves  passed  in  town-meeting,  which  is 
proved  by  the  clerk's  minutes,  or  as  the  connection  be- 
tween a  private  grantor  and  his  conveyance  of  a  house  or 
farm,  which  is  proved  in  the  county  registry.^ 

If,  on  the  other  hand,  the  primary  political  fact  has  been 
or  now  is  that  sovereignty  was  or  is  vested  in  the  nation  as 
a  mass,  or,  in  other  words,  if  the  term  "  We  the  people  of 
the  United  States  "  in  the  written  Constitution  has  indi- 
cated or  does  now  indicate  the  nation  as  a  mass,  the  con- 
nection between  this  ♦people  and  that  Constitution,  as  the 
law  resting  on  their  will,  together  with  all  action  of  the 
general  Government,  is  not  apparent.^  There  is  no  record 
of  any  sort  to  show  it.  It  can  be  known  only  as  some 
person  or  persons  may  aj^pear  to  have  succeeded  in  using 
political  power  in  the  name  of  such  people.^ 

1  "Judging  by  the  regular  exercise  of  sovereign  powers  in  the  United 
States  —  that  is,  by  the  constitution  of  government  now  established, — sov- 
ereignty would  seem  to  reside  in  the  people  as  discriminated  into  the  groups 
known  as  States."  Jameson's  Const.  Convention,  §  57.  The  author's  argu- 
ment, however,  would  require,  as  major  premise,  that,  in  this  matter,  appear- 
ances always  indicate  the  contrary.  The  whole  section  is  one  of  the  most 
remarkable  in  the  work  referred  to,  as  illustrating  the  method  of  reasoning 
by  assertion  which  has  characterized  this  school  from  the  day  of  Chisholm  v, 
Georgia. 

2  It  must  be  borne  in  mind  that  no  judicial  assertion  of  the  existence  of 
such  a  connection,  unsupported  by  tlie  historical  record,  can  become  testimony 
to  the  existence  of  such  a  connection;  even  though  the  judge  making  the 
assertion  should  be  the  wisest  and  best  among  men.  Indeed,  when  so  un- 
supported by  the  record,  the  higher  the  judicial  position  and  the  higher  the 
character  for  wisdom  and  goodness  of  the  person  making  the  assertion,  the 
more  evident  is  the  failure  to  produce  the  effect  of  evidence  supporting  the 
existence  asserted.  No  clearer  instance  of  this  failure  to  show  any  connec- 
tion between  the  Constitution  and  the  action  of  the  people  as  a  mass  could 
be  found  than  that  in  the  assertion  of  its  existence  made  by  Chief  Justice 
Marshall,  in  McCulloch  v.  Maryland,  4  Wheaton,  404,  in  the  passages  cited  in 
Story's  Commentaries,  §  362,  in  which  Marshall  argued  —  if  such  can  be 
called  arguing  —  that  the  fact  that  the  Constitution  was  adopted  in  each 
State  by  the  political  people  of  such  State,  as  distinguished  from  the  State 
governments,  was  in  reality  another  and  totally  dilTerent  fact,  that  is,  its 
adoption  by  the  people  of  the  whole  countr}'  without  distinction  of  persona 
or  of  States.     Compare  ante,  pp.  109-113,  312,323. 

8  Ante,  p.  333. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  339 

The  Government  connected  with  the  Constitution. 

By  this  last  supposition,  theory,  or  doctrine,  whether 
taken  as  true  before  or  only  after  1861,  the  only  facts 
underlying-  all  our  political  life  have  been,  or  now  are,  two 
facts  without  any  necessary  political  relation  or  any  con- 
nection in  the  order  of  their  origin,  —  one  the  existence 
of  a  nation  or  people  as  a  mass  ;  the  other,  the  existence 
of  a  government  assuming  to  administer  a  written  Con- 
stitution as  a  supreme  law  of  the  land.^ 

If  this  last  supposition  is  presented  as  having  been  true 
before  1861,  as  well  as  afterwards,  it  must  also  be  held 
that,  though  the  historical  adoption  of  the  Constitution  by 
the  several  political  peoples  of  the  States  was  an  act  of 
usurpation,  as  against  the  nation  as  a  mass,^  yet,  being 
condoned  by  such  nation,  it  enured  for  the  political  benefit 
of  the  government  organized  according  to  such  Consti- 
tution ;  so  that,  by  it,  the  political  peoples  of  the  States 
in  their  corporate  capacities  became  subject  to  the  govern- 
ment they  had  themselves  wrongfully  set  up,  as  if  by  their 
united  wills. 

As  nobody  could  show  that  a  nation  as  a  mass  had 
authorized  the  States  in  union  to  represent  it  when  they 
adopted  the  Constitution,  it  is  certain  that  no  political 
method  of  ascertaining  the  will  of  the  nation  as  a  mass 
has  as  yet  been  even  suggested.  The  political  rights  of 
the  States  in  union,  antecedent  to  the  Constitution,  being 
then  ignored,  the  Government  is  not  the  agent  of  the  States 
in  union ;  while,  by  assuming  the  Constitution  as  a  law 
which  it  is  to  apply,  it  makes  itself  the  author  of  such 
law. 

1  As  this  theory  or  doctrine  is  presented  by  its  adherents,  the  Consti- 
tution, acting  as  law,  is  postulated  as  one  fact,  independently  of  its  being 
applied  by  any  body.  The  nation  is  supposed  as  the  other  fact;  but  no  con- 
nection is  shown  between  them.  Compare  Pomeroy's  Const.  Law.  §§  14-16, 
pp.  10-12,  of  the  fourth  ed.  This  is  the  fetish  Constitution.  A  Constitution 
for  wliich  no  authority  can  be  proved  is  not  a  fact  at  all,  except  as  any 
written  piece  of  paper  is  a  fact. 

2  Compare  ante,  p.  334. 


340  THE   PLACE   OF   SOVEREIGNTY. 

Possibility  of  a  Revolutionary  Change. 

It  would  then  appear,  under  this  last  supposition,  that 
tliis  Government  has,  though  by  a  sort  of  necessity,  actually 
followed  the  old  method  of  European  governments  indi- 
cated by  Professors  Pomeroy  and  Jameson.  It  has  usurped 
sovereignty,  as  against  the  nation  itself,  by  presenting  the 
Constitution,  not  as  the  law  of  a  known  legislator,  the  pre- 
existent  States  in  union,  under  w^hich  law  it  should  itself 
exist,  but  as  a  law  which,  in  the  name  of  the  sovereignty 
of  the  people,  it  proposes  to  enforce  as  a  rule  binding  on 
States  and  on  people. 

If  this  last  supposition  is  presented  as  true  only  since 
1861,  and  if  it  is  granted  that  before  that  date  sovereignty 
was  vested  in  the  political  peoples  of  the  States,  being 
united,  the  general  Government,  by  taking  this  position, 
might  be  thought  to  have  usurped  sovereignty  as  against 
the  j)olitical  peoples  of  the  States ;  unless  it  can  also  be 
now  shown  that  a  revolutionary  change  in  the  seat  of 
sovereignty,  not  due  solely  to  the  action  of  that  Govern- 
ment, but  supported  by  irregular  popular  force,  has  oc- 
curred. 

Whatever  may  be  the  consequences  logically  involved  in 
accepting  this  supposition  or  theory,  it  is  one  of  the  facts  of 
this  particular  case  that  the  persons  who,  with  the  judiciary, 
constitute  the  general  Government  are  sworn  to  maintain  a 
written  Constitution  which  in  its  terms  provides  for  and 
limits  this  general  Government ;  and  they  therefore  must 
present  themselves  as  controlled,  in  some  sense,  by  its 
provisions,  while  they  undertake  to  enforce  it  as  law  in  the 
name  of  the  sovereignty  of  the  people. 

This  Constitution  or  law  has  indeed  been  changed  in 
some  particulars  since  the  war  ;  but  so  changed  by  Amend- 
ments adopted  in  apparent  accordance  with  the  tenor  of 
the  provisions  on  that  subject  in  the  original  Constitution 
of  1787. 

It  may  perhaps  be  said,  in  suggestion  of  a  doubt,  that, 


THEOPwY  OF   OUR    NATIONAL  EXISTENCE.  841 

How  such  Revolution  may  be  known. 

judging  by  the  past,  the  Constitution  as  laiv  could  be  ad- 
ministered by  the  same  sworn  officials  whether  the  State- 
rights  version  of  history,  or  the  Madison  and  Jackson  ver- 
sion of  a  division  of  sovereignty,  or  the  Story  and  Webster 
version,  resting  on  the  words  "  We  the  people,"  etc.,  or  any 
other  version  hitherto  offered  was  adopted.^  It  may  be 
said  that  the  supposed  change,  by  usurpation  or  by  revo- 
lution, has,  apparently,  at  the  most  made  that  to  be  true 
in  fact,  or  historically  since  1861,  which  before  that  date 
had  been  asserted  as  then  existing  fact  only  by  the  school 
of  Story  and  Webster. 

It  may  then  naturally  also  be  asked,  — 

First,  —  How  could  it  at  any  time  be  known  that  this 
written  Constitution  has,  as  a  law,  expressed  or  may  here- 
after express  the  will  of  one  sovereign,  —  the  supposed 
nation  as  a  mass,  —  instead  of  having  expressed  or  here- 
after expressing  the  will  of  another  sovereign,  —  the  sup- 
posed States  in  a  voluntary  union  ?  and, 

Second,  —  How  has  the  supposed  revolutionary  change 
made  or  how  can  it  make  any  practical  difference  in  the 
matter  of  public  or  private  rights  and  obligations  ? 

On  the  occurrence  of  any  revolution,  as  the  histories  of 
all  former  revolutions  show,  nothing  is  more  difficult  to 
prognosticate  than  how  it  will  be  felt  or  be  known  as  a 
revolution.  But  an  answer  to  each  of  the  above  inquiries 
may  be  suggested  by  the  following  considerations  which 
apply  more  directly  to  the  first,  —  How  can  it  be  known 
that  such  a  revolution  has  taken  place  ? 

This  written  "  Constitution  of  the  United  States  "  is  the 
only  rule  of  government  which,  under  this  last  supposition, 
can  be  assumed  to  exist  as  the  expression  of  the  will  of  the 
nation  as  a  mass.    In  this,  previously  to  1868-1870,  provision 

1  This  mny  appear  from  the  circumstance  that,  though  every  variety  of 
opinion  on  this  matter  has  been  held  by  judges,  by  executives,  and  by  mem- 
bers of  Congress,  yet  nobody  has  been  impeached  merely  for  his  opinions. 


342  THE   PLACE   OF   SOVEREIGNTY. 

How  such  Kevolution  may  be  known. 

had  been  made  for  the  organization  of  a  general  Govern- 
ment only ;  no  provisions  for  organizing  either  State  ad- 
ministrative governments,  or  the  political  peoples  of  the 
States,  directly ,1  or  otherwise  than  by  the  agency  of  that 
general  Government,  in  the  admission  of  new  States,^  were 
combined  with  it. 

The  idea  of  pre-existence  of  States  united,  as  requisite 
to  the  existence  of  any  Constitution  of  the  United  States, 
being  excluded,  as  it  is  under  this  last  supposition,  it  would 
therefore  appear  that  the  Government,  as  the  only  one  to 
claim  authority  in  the  name  of  the  nation  as  a  mass,  must 
claim  to  stand  in  the  relation  of  a  superior  to  any  others 
which  may  actually  or  possibly  be  found  within  the  na- 

1  A  limitation  on  the  self-determining  power  of  the  political  people  of 
each  State  was  introduced  by  sect.  1  of  art.  XIV.,  adopted  1868,  "  All  persons 
born  or  naturalized  in  the  United  States  and  subject  to  the  jurisdiction  there- 
of are  citizens  of  the  United  States  and  of  the  State  wherein  they  reside," 
and  sect.  1  of  art.  XV.,  adopted  1870,  "  The  right  of  citizens  of  tlie  United 
States  to  vote  shall  not  be  denied  or  abridged  by  tlie  United  States,  or  by 
any  State,  on  account  of  race,  color,  or  previous  condition  of  servitude,"  and 
sect.  2,  "  The  Congress  shall  have  power  to  enforce  this  article  by  appropriate 
legislation." 

-  Allusion  only  can  here  be  made  to  a  matter  of  theory  which  might 
properly  have  been  noticed  in  coimection  with  the  subject  of  ch.  IV.  There 
are  probably  many  who  think  that  in  the  admission  of  new  States,  as  pro- 
vided for  in  theConstitution,  art.  IV.  sect.  3,  the  subordination  under  law  of 
those  States,  at  least,  in  having  received  their  existence  from  something 
called  "the  Union,"  according  to  a  Constitution  whose  pre-existence  could 
not  have  been  derived  from  their  own  possession  of  sovereignty,  lias  been 
historically  demonstrated.  It  has  been  said  of  "  the  States  formed  since  the 
adoption  of  the  Federal  Constitution.  They,  instead  of  regarding  them- 
selves as  tlie  creator  of  the  Union,  are  forced  by  the  facts  of  their  history  to 
look  upon  themselves  as  its  creatures.  They  owe  to  it  all  they  liave  and  all 
they  are.  There  is  nothing  historical  about  the  State-riglits  doctrine  in  these 
new  communities." —  The  Nation,  Oct.  7,  1880.  This  is  another  illustration 
of  the  idea  of  a  Constitution  existing  per  se,  and  of  the  lawyer's  point  of 
view.  The  entry  or  birth  of  a  new  State  of  the  Union  was  not  a  fact  under 
the  Constitution  as  law,  nor  under  any  law.  It  was  a  political  fact  in  the  trans- 
mission of  sovereignty ;  as  much  so  as  the  fact  that  the  original  thirteen 
colonies  acquired  sovereignty  as  States  in  union.  The  new  State  accepted 
participation  of  sovereignty  in  the  democratic  oligarchy  {ante,  p.  140),  and 
forthwith  the  Constitution  derived  its  validity  from  States  in  union,  number- 
ing one  more. 


THEORY   OP   OUR  NATIONAL  EXISTENCE.  343 

How  such  Revolution  may  be  known. 

tional  dominion.  That  is,  it  must  stand  in  this  rehition 
not  only  to  the  administrative  governments  organized  in 
the  several  States,  but  also  to  the  corporate  peoples  of  those 
States,  who,  by  their  several  action,  have  organized  such 
administrative  State  governments,  and  who  in  appearance 
voluntarily  instituted  that  general  Government  by  adopting 
the  Constitution  of  the  United  States,  and  who  still  appear 
to  act  voluntarily  in  sustaining  the  existence  of  such  Gov- 
ernment from  time  to  time,  by  electing  persons  to  consti- 
tute such  Government. 

Under  the  supposition  that  the  Constitution  as  law  was 
derived  from  the  will  of  the  organic  political  peoples  of 
the  States  united,  they,  like  other  sovereigns,  might  be 
supposed  capable  of  taking  care  of  their  own  political  ex- 
istence, power,  or  right ;  or  it  would  be  the  duty  of  the 
general  Government  to  do  this,  only  as  it  might  be  inci- 
dental to  the  discharge  of  its  prescribed  duties,  as  their 
agent,  under  the  law  given  by  them  in  the  Constitution. 
The  Government  would  have  no  right  to  go  beyond  this 
law,  with  the  general  purpose  to  maintain  the  sovereignty 
of  those  upon  whose  will  the  continuance  of  the  law  was 
to  depend.^ 

But  under  the  other  supposition,  the  position  of  the  Gov- 
ernment may  be  very  different.  Under  this  supposition,  the 
possession  of  sovereign  power  by  the  nation  as  a  mass  can 
be  known  or  felt  only  as  there  may  be  a  government  as- 
suming to  act  supremely  by  administering  a  constitution, 
as  law,  in  the  name  of  such  nation.  Therefore,  it  must 
become  the  duty  and  right  of  the  general  Government  to 
maintain  its  own  existence  as  a  supreme  or  sovereign  gov- 
ernment ;  this  being  the  only  method  in  which  the  sover- 
eignty of  the  nation  as  a  mass  can  be  preserved  at  all.  In 
being  the  only  manifestation  of  the  nation,  that  Government 
must  have  the  political  right  and  duty  to  maintain  itself  as 
1  Compare  ante,  pp.  201,  302,  303. 


344  THE  PLACE   OF   SOVEREIGNTY. 

How  such  Revolution  may  be  known. 

sovereign  against  all  persons,  whether  acting  as  private 
citizens  or  as  corporate  States,  and,  in  this  general  purpose, 
it  cannot  be  bound  by  the  Constitution  as  the  limit  of  its 
powers ;  because,  by  this  theory,  that  Constitution  is  not 
law  at  all,  except  as  that  Government  may  sustain  it. 

It  is  in  harmony  with  this  supposition  to  hold  that  the 
States  are  political  organizations,  whose  rights,  under  the 
Constitution  as  law  governing  them,  to  send  senators  and 
representatives  to  Congress  and  to  contribute  a  proportion 
of  the  members  of  the  electoral  college,^  are  trusts  in  the 
hands  of  the  political  peoples  of  the  several  States  for  the 
object  of  continuing  the  existence  of  the  general  Govern- 
ment.2 

It  might  seem  from  this  that  no  action  of  a  State  in  its 
corporate  capacity  as  one  of  the  United  States  could 
interfere  with  the  fulfilment  of  this  obligation ;  that, 
while  recognizing  the  existence  of  the  State  as  a  member 
of  the  Union,  the  general  Government  could  distinguish 
between  voters  "  loyal "  and  voters  "  not  loyal  "  in  this 
political  relation  between  the  States  and  the  general  Gov- 
ernment ;  and  that,  however  insignificant  in  number  might 
be  the  proportion  of  the  voters  of  the  State  willing  to 
perform  this  trust,  the  general  Government  should  recog- 
nize them  as  capable  of  sending  the  State's  whole  quota  of 

1  I  here  assume  that  the  original  intention  was  to  form  an  electoral 
college,  the  members  of  which  should  cast  tlieir  votes  individually  or  as 
expressing  their  individual  preference.  In  practice,  as  is  well  known,  the 
votes  are  given  as  the  solid  vote  of  the  State  ;  giving  greater  strength  to 
majorities  in  the  States,  and  making  it  possible  to  elect  the  executive  by  a 
minority  of  tiie  voting  people  of  the  States.  This  is  an  exhibition  of  States- 
right  idea  growing  up  under  the  same  Constitution  which  is  supposed  to  have 
generated  "nationalism"  onl}'. 

2  Compare  Mr.  Webster's  argument,  ante,  p.  305,  n.  Also  Mr.  Justice 
Swayne's  :  "  The  States  are  organisms  for  the  performance  of  their  appro- 
priate functions  in  the  vital  system  of  the  larger  polity  of  wliich,  in  this 
aspect  of  the  subject,  they  form  a  part,  and  which  would  perish  if  they  were 
stricken  from  existence  and  ceased  to  perform  their  allotted  work."  Ante, 
p.  20. 


THEORY   OF   OUR  NATIONAL   EXISTENCE.  345 

How  such  Revolution  may  be  known. 

senators,  representatives,  and  electors,  however  large  the 
majority  opposed  to  exercising  this  right  and  to  joining  in 
maintaining  the  personnel  of  the  general  Government. 

It  would  appear  consistent  with  this  view  that  the  Gov- 
ernment should  have  the  power  to  discriminate  the  "  loyal " 
citizens  from  the  "  disloyal  "  by  means  of  test  oaths,  and 
to  secure  "  loyal "  citizens  in  freedom  of  action  by  its  own 
administrative  power. ^ 

Moreover,  if  such  should  be  the  actual  powers  and 
duties  of  a  government  under  any  theory  of  its  existence, 
it  may  reasonably  insist  that  the  written  public  law  should 
be  so  expressed  as  to  leave  no  doubt  as  to  the  political 
duty  of  the  citizens.^  The  States,  regarded  as  organisms  for 
sustaining  the  general  Government,  might  be  required,  it 
would  seem,  to  effect  this  by  adopting,  under  the  direc- 
tion of  that  Government,  such  amendments  to  the  written 
Constitution  as  might  be  deemed  by  it  necessary  or  proper. 

I  have  hereinbefore  argued  that  the  methods  actually 
adopted  by  the  Government  in  reference  to  the  Rebellion 
and  in  reconstruction  might,  as  a  whole,  be  held  consti- 
tutional, if  the  eleven  States  of  the  Confederacy  had  ceased 

1  Under  this  view  it  is  quite  supposable  that  the  persons  exercising  the 
functions  of  the  general  Government  might  sustain  themselves  in  power 
against  the  will  of  the  actual  majority  of  the  people  of  the  country,  while 
preserving  the  forms  of  the  Constitution.  Indeed,  it  may  be  difficult  to  see 
how  any  provisions  should  bind  the  sole  representative  of  the  nation  as  a 
mass.  It  would  be  correct  to  say,  generally,  "  The  powers  originally  re- 
served by  the  Constitution  to  the  States  are  in  future  to  be  held  by  them  only 
on  good  behavior  and  at  the  sufferance  of  Congress."  —  North  American  Review, 
July,  1870,  article  by  Mr.  Henry  Brooks  Adams,  entitled  "  The  Session,"  an 
essay  which  may  be  referred  to  as  illustrating  very  forcibly  the  operation 
of  the  supposed  political  change. 

2  If  the  citizen  or  subject  can  have  a  right  independent  of  constitutions 
and  laws,  it  would  seem  to  be  a  right  to  know  in  advance  whose  legislation  he 
must  obey  and  whose  he  must  disobey.  No  such  right,  however,  is  alluded 
to  in  the  Declaration,  nor  in  the  Opinions  in  Chisholm  v.  Georgia  and  other 
cases  of  that  period.  Probably,  because  the  statesmen  and  jurists  of  that 
time  held  that  the  freeman  obeys  only  where  he  may  choose.  Compare  ante, 
pp.  298,  329. 


346  THE   PLACE   OF   SOVEREIGNTY. 

How  sucli  lievolution  may  be  known. 

to  have  the  political  faculties  of  States  composing  "  the 
United  States  "  and  had  passed  under  a  jurisdiction  ex- 
ercised, under  the  Constitution,  exclusively  by  Congress, 
as  over  Territories  subject  to  the  undistributed  sovereignty 
of  those  States  which  remained  in  a  voluntary  union. ^ 

But  from  the  considerations  above  presented,  as  legiti- 
mate under  the  theory  of  the  sovereignty  of  the  nation  as 
a  mass,  represented  b}^  a  government  enforcing  the  written 
Constitution  as  a  law  binding  on  the  States  as  its  subjects, 
it  appears  that,  under  that  theory,  the  same  methods  of 
government  should  be  held  constitutional  —  without  assert- 
ing any  doctrine  of  State-lapse  —  if  only  thought  by  such 
government  politically  necessary  to  its  own  maintenance 
as  the  government  representing  the  nation  as  a  mass.^ 

Nothing  has  been  more  distinctly  affirmed  by  the  Su- 
preme Court  than  the  uninterrupted  continuance  of  the 
eleven  States. 

But  the  supposition  or  theory  which  would,  as  above 
stated,  sustain  the  measures  taken,  though  the  continued 
existence  of  those  States  sliould  be  admitted,  has  no  basis 
in  the  history  of  the  country  before  1861.  The  assertions 
by  Marshall  and  Story,  and  by  judges  and  jurists  now 
living,  in  contradiction  of  the  record,  cannot  make  a  his- 
tory to  support  that  theory. 

Therefore,  as  the  Supreme  Court  has  neither  accepted 
any  doctrine  of  State-lapse  nor  declared  these  methods  of 
government  contrary  to  the  letter  and  spirit  of  the  written 
Constitution,  it  has,  according  to  the  alternative  hereinbe- 

1  Ante,  pp.  145,201. 

2  In  his  article  in  North  American  Review,  July,  1870,  Mr.  Henry  Brooks 
Adams  says,  "  Tiie  resistance  to  tlicse  measures  rested  primarily  on  the  fact 
that  they  were  in  violation  of  the  letter  and  spirit  of  the  Constitution,  as  re- 
garded the  rights  of  the  States  :  and  the  jurisdiction  rested,  not  on  a  denial 
of  tlie  violation,  but  in  the  overruling  fact  of  necessity."  An  argument 
from  such  a  supposed  necessity  has,  in  fact,  been  tlie  only  argument  offered 
to  sustain  those  measures.     See  ante,  pp.  200,  201. 


THEORY   OF   OUR   ISATIONAL   EXISTENCE.  347 

How  such  Revolution  may  be  known. 

fore  stated,^  recognized  a  usurpation  on  the  part  of  the 
general  Government,  which  may  have  been  converted  into 
legal  and  constitutional  action  by  a  political  change  in  the 
investiture  of  sovereignty  since  1861 ;  making  the  theory 
which  would  support  such  methods  true,  that  is,  making  it 
a  correct  exposition  of  the  actual  possession  of  sovereign 
power  as  historic  fact. 

For  whether  the  general  Government,  before  1861,  was 
or  was  not  to  be  regarded  as  superior  to  the- States  in  a 
voluntary  union  by  rej)resenting«the  nation  as  a  mass,  yet 
if  "  the  bulk  of  the  given  society  "  —  the  inhabitants  of 
this  country  in  this  instance  — have  "habitually  "  ^  recog- 
nized the  action  of  that  Government  at  that  time  as  legit- 
imate and  have  also  asserted  the  continued  existence  of 
the  eleven  States  of  the  Confederacy,^  the  theory  of  our 
national  existence  which  supports  such  action  must  be 
taken  as  having  received  recognition  also.^ 

The  question,  then,  is  narrowed  down  to  this, — Is  this 

1  Ante,  pp.  107,  333. 

2  See  ante,  p.  322. 

8  No  expression  that  has  been  uttered  on  the  Supreme  bench  has  had 
more  popular  acceptance  than  that  by  Ciiief  Justice  Chase,  in  Texas  v. 
White,  —  "an  indestructible  Union,  comj)osed  of  indestructible  States." 
Ante,  p.  12. 

*  In  the  article  entitled  "  The  President's  Polic)',"  contributed  by  Mr.  Low- 
ell to  the  North  American  Review,  January,  18(34  (ante,  p.  271,  n.),  it  is  said, 
p.  259,  "  We  believe,  and  our  belief  is  warranted  by  experience,  that  all 
measures  will  be  found  to  have  been  constitutional  at  last,  on  which  the 
jteople  are  overwhelmingly  united.  We  must  not  lose  sight  of  the  fact  that 
whatever  is  eT</a-constitutional  is  not  necessarily  unconstitutional."  This 
"belief"  could  be  justified  only  on  the  basis,  above  presented,  of  a  revolu- 
tionary change.  The  "  e;r<ra-constitutional  "  measure  contemplated  in  tlie 
article  cited  was  the  executive  abolition  of  slavery,  as  to  which  "  the  people" 
of  the  Northern  States  were  not  "  overwhelmingly  united,"  and  if  a  ma- 
jority of  a  nation  as  amass  was  to  be  estimated,  surely  the  inhabitants  of  the 
Soutiiern  States  were  not  to  be  excluded  from  the  census.  So  far  as  the  so- 
called  "  emancipation  by  proclamation  "  has  been  made  effectual,  it  has  been 
by  the  subsequent  legislative  ratification  by  States.  Compare  ante,  p.  244, 
n.  2.  Since  the  note  1,  on  page  196,  was  in  type  Mr.  Dana's  article,  entitled 
"  Nullity  of  the  Emancipation  Edict,"  has  appeared  in  the  North  American 
Review,  August,  1880. 


348  THE   PLACE   OF  SOVEREIGNTY. 

How  such  Revolution  may  be  known. 

investiture  of  supreme  power  in  the  nation  or  peojde  as  a 
mass,  now  so  "  overwhelmingly  "  asserted  by  the  general 
public,  that  the  courts  of  law,  both  of  the  States  and  of  the 
general  Government,  may,  should,  or  must  recognize  this 
by  accepting  the  general  consequences  involved  as  already 
indicated  ? 

In  an  inquiry  of  this  sort,  it  is  almost  inconceivable  that 
any  statement  of  the  prevailing  opinion  should  be  gen- 
erally received  as  satisfactory.  Only  a  few  suggestions  as 
to  the  nature  of  the  inquiry  can  here  be  offered. 

It  is  obvious  that  in  such  an  inquiry  the  readiest  and 
best  evidence  should  be  found  by  learning,  as  far  as  pos- 
sible, upon  what  ground,  or  what  theory  of  political  obli- 
gation, the  measures  of  the  Government  as  against  the 
Eebellion  and  those  of  the  reconstruction  period  were,  in 
the  estimation  of  the  great  bulk  of  the  people,  to  be 
justified ;  whether  they  were  to  be  defended  as  constitu- 
tional, or  only  submitted  to,  though  held  unconstitutional. 
In  settling  a  question  of  fact  of  this  kind,  the  opinion  of 
those  who  had  opposed  those  measures  as  resting  on  the 
supposition  that  the  general  Government,  as  representing 
the  people  as  a  mass,  was  superior  or  sovereign  in  relation 
to  the  States,  and  the  opinion  of  those  who  had  supported 
those  measures  on  the  same  ground  are  equally  strong  as 
testimony.  For,  since  the  measures  themselves  have  actu- 
ally been  carried  out,  or  are  now  accomplished  facts  which 
all  have  accepted  as  facts,  either  willingly  or  un willingly ,i 

1  In  niakinn;  tliis  inquiry,  acquiescence  in  or  obedience  to  political  rule  is 
referred  to  as  evidence  of  the  possession  of  political  dominion  by  those  whose 
rule  is  so  obeyed.  But  some  who  attribute  the  Constitution  of  1787  to  the 
legislative  will  of  the  nation  as  a  mass  have  spoken  of  "  the  acquiescence 
and  obedience  of  the  people  "  to  the  Government  organized  under  that  Con- 
stitution as  being  an  exhibition  of  sovereignty  by  that  people  :  as  in  Story's 
Conim.  §  216,  quoting  Patterson,  J.,  in  Penhallow  v.  Doane,  3  Dallas,  54; 
and  Chase,  J.,  in  Ware  v.  Hylton,  3  Dallas,  l'J9,  —  which  is  quite  a  different 
thing.     Compare  ante,  p.  322,  note  3. 


THEORY   OF  OUR   NATIONAL   EXISTENCE.  349 

Public  Opinion  —  how  discerned. 

the  basis  on  which  they  must  stand,  in  relation  to  the 
Constitution,  is  indicated  by  the  adverse  as  well  as  by  the 
favorable  opinion. 

This  line  of  testimony  would  naturally  lead  the  inquirer 
among  a  variety  of  assertions  more  or  less  directly  con- 
nected with  the  prospective  aims  of  the  political  parties  of 
the  day.  So  far  as  any  of  these  could  be  taken  to  express 
the  belief  of  individual  citizens,  in  connection  with  any 
such  party,  as  to  past  transactions,  they  would  all  be 
equally  entitled  to  a  consideration  in  an  estimate  of  gen- 
eral opinion.  The  subject  of  inquiry  is  the  opinion,  on  a 
question  of  fact,  of  the  people  of  the  country  as  a  collec- 
tion of  individuals,  each  severally  capable  of  having  an 
opinion  ;  and  the  judgment  of  persons  from  every  section, 
South  or  North,  must  be  equally  worthy  of  attention 

Moreover,  if  any  general  policy  is  now  politically  sup- 
ported by  one  school,  party,  or  section,  and  politically 
opposed  by  another  school,  party,  or  section,  as  leading  to 
measures  which  7ioiv  would  be  constitutional,  though  their 
constitutionality  before  the  war  might  have  been  denied, 
or  was  doubtful,  the  action  of  both  schools,  parties,  or 
sections  might  be  taken  as  testimony  that  such  a  change 
had  occurred  or  had  begun  to  be  made  effectual. 

There  is  besides  a  class  of  opinions  which,  as  they  pro- 
fess to  be,  or  from  the  position  of  their  authors  must  be 
presumptively  taken  to  be,  in  the  nature  of  testimony  on 
the  political  fact,  may  more  especially  be  referred  to  in 
this  inquiry.  This  class  is  to  be  found  in  portions  of  the 
periodical  literature  of  the  country  and  in  the  pages  of 
writers  who  occupy  the  combined  standpoints  of  the  critic, 
the  jurist,  and  the  historian,  and  who  present  themselves 
as  writing,  not  with  a  view  to  promote  this  or  that  politi- 
cal end  or  policy,  but  to  furnish  a  guide  for  the  present 
and  a  memorial  for  the  future  citizen. 

So   far   as   such   writers  may   testify   to   the   question 


350  THE  PLACE   OF   SOVEREIGNTY. 

Judicial  Opinions  on  the  Question. 

whether  a  revolutionary  change  in  the  possession  of  sov- 
ereignty has  occurred,  their  opinions  are  important  as  tes- 
timony ;  but  so  far  as  they  may  rest  their  view  of  the 
present  location  of  supreme  power  on  history  earlier  than 
1861,  their  statements  are  open  to  the  same  comparison 
with  the  record  and  their  inferences  to  the  same  excep- 
tions, as  before  that  date. 

It  will,  I  do  not  doubt,  appear  political  and  legal  heresy 
to  many  if  I  class  the  "  opinions"  delivered  by  judges  in 
support  of  judgments  in  cases  at  law,  including  those  of 
members  of  the  Supreme  Court  of  the  United  States,  with 
the  statements  of  private  writers  above  described, — so  far 
as  they  bear  on  the  present  inquiry;  that  is  to  say,  if  I 
should  hold  that,  as  indications  of  the  location  of  sov- 
ereignty, these  opinions  are  only  testimony,  and  can  be 
nothing  else. 

The  doctrine  that  the  Supreme  Court  has,  under  the 
Constitution,  power  to  determine  the  political  powers  of 
the  general  Government  and  of  the  States,  or  that  it  can, 
in  other  words,  settle,  by  its  opinion  as  a  court,  the  loca- 
tion of  sovereign  power,  has  been  always  more  or  less  ex- 
tensively asserted  from  the  first  establishment  of  the 
Government  under  the  Constitution,  and  also  has  had, 
probably,  increasing  acceptance  up  to  the  present  time  ; 
independentl}'"  of  the  question  whether  the  Government, 
of  which  the  judiciary  is  a  part,  has  become,  by  revolution, 
the  representative  of  the  sovereign  found  in  the  nation  as 
a  mass. 

Such  a  power,  if  it  existed  in  the  past,  must  have  been 
derived  either  from  the  language  of  the  Constitution,  as 
law,  or  from  the  nature  of  the  court,  as  a  court  of  law. 

Tlie  language  of  the  Constitution  in  this  connection 
agrees  with  the  nature  of  all  courts  of  law,  and  the  power 
claimed  could  not  be  based  upon  either. 

There  is  no  question  as  to  the  finality  of  the  judgment  of 


THEOKY   OF   OUR   NATIONAL  EXISTENCE.  351 

Position  of  tiie  Supreme  Court. 

tiie  Sujireme  Court  in  each  case  coming  within  its  juris- 
diction, as  defined  in  the  Constitution  ;  nor  any  question 
whether  such  a  judgment  is  to  be  carried  into  execution  by 
the  whole  force  of  the  Government,  civil  and  military,  or 
can  be  resisted  by  citizens  or  by  a  State  or  States  only  at 
their  peril.  In  this  respect,  however,  the  court  is  in  no 
other  or  better  position  than  the  tribunals,  great  or  small, 
of  any  civilized  country. 

But  it  ought  not  to  be  necessary  for  any  one  brought  up 
with  a  knowledge  of  the  common  law  of  England  and 
America  to  be  told  that,  even  under  that  development  of 
unwritten  law,  it  has  never  been  claimed  that  the  opinion 
of  the  judge  made  the  law.  He  should  know  that  the 
growth  of  law  from  adjudged  cases  is  a  totally  different 
thing  ;  and  that  one  great  purpose  of  all  written  or  statu- 
tory law  is  to  limit  such  juristical  induction  from  adjudged 
cases. 

I  am,  however,  ready  to  admit,  and  desirous  to  point 
out,  that  the  correctness  of  this  view  of  the  character  of 
the  judicial  function,  as  exercised  by  the  courts  of  the 
general  Government,  itself  depends  upon  that  very  ques- 
tion of  fact,  on  which  the  opinions  of  the  court  are  here 
regarded  as  giving  testimony.  This  view  assumes  that  the 
court  is  in  the  same  position  as  the  courts  of  other  civilized 
countries,  in  relation  to  the  knowledge  of  the  rule  which 
it  applies  as  law  in  cases  coming  before  it ;  that  is,  that  it 
applies  the  Constitution  as  law,  with  the  idea  that  it  is  the 
legislative  will  of  a  known  sovereign,  who  has  instituted 
the  court,  as  well  as  the  other  branches  of  the  Govern- 
ment, to  be  an  instrument  for  the  execution  of  its  will,  but 
without  identifying  itself  with  that  Government. 

But,  under  the  theory  or  doctrine  which  makes  the 
general  Government  a  supreme  or  sovereign  government, 
independently  of  the  existence  of  the  States  in  a  voluntary 
union,  and  which  presents  that  Government  as  the  organ 


352  THE   PLACE   OF   SOVEREIGNTY. 

Position  of  the  Supreme  Court. 

of  sovereignty  vested  in  the  people  or  nation  as  a  mass,  it 
is  clear,  to  ray  mind,  that  the  Supreme  Court  is  in  a  very 
different  position,  as  to  the  law  it  will  administer,  from  the 
judiciaries  of  other  countries."  In  being  part  of  such  a  gov- 
ernment, its  judicial  function  is  also  a  political  function  ; 
whether  it  may  assume  to  decide  on  the  propriety  of  the 
powers  exercised  by  the  executive  and  legislative  function- 
aries of  the  general  Government,  or  may  limit  itself  to 
accepting  their  assumption  of  powers  as  being  a  faculty  of 
"  the  political  department,"  for  which  the  judiciary  has  no 
responsibility.^ 

Under  this  view  of  the  position  of  the  Supreme  Court, 
it  may  well  be  held  that  the  "  opinions  "  of  the  justices  are 
not  merely  juristical  explanations  of  principles  supposed  to 
have  determined  the  decision  of  a  particular  case,  which 
decision  may  be  collated  or  compared  with  other  decisions 
in  analogous  cases,  to  furnish,  by  juridical  induction,  a  gen- 
eral principle  for  later  cases  in  the  courts,  but  are,  accord- 
ing to  their  unanimity  in  the  particular  case,  political 
legislation,  settling,  as  by  decree  of  a  sovereign,  the  pow- 
ers of  the  Government  in  the  future. 

Under  this  view  the  court  is,  as  has  been  claimed,  "the 
final  arbiter "  of  all  questions  of  political  power ;  not 
merely  in  cases  at  law  which  may  come  before  it,  in  which 
the  extent  of  that  power  may  be  involved,  but  the  final 
arbiter  in  the  sense  in  which  every  ultimate  possessor  of 
supreme  power  is  such.^ 

If  this  position  is  now  claimed  for  the  Supreme  Court 
only  on  the  basis  of  history  before  1861,  the  claim  is  not 
different  from  any  similar  claim,  if  made  by  Marshall  or 
Story,  on  their  unsupported  version  of  the  origin  of  the 
Constitution  in  the  will  of  the  nation  or  people  as  a  mass. 

1  Compare  ante,  p.  19,  and  note,  and  p.  213. 

2  The  view  here  given,  with  the  argument  supporting  it,  is  identical  with 
that  taken  by  Mr.  Pomeroy,  if  I  understand  his  language,  in  Const.  Law, 
§§  123-128. 


THEORY  OF   OUR   KATIONAL  EXISTENCE.  353 

Statement  of  Opinion  as  possibly  held. 

But  if  made  as  only  now  belonging  to  the  court,  or  only 
since  a  date  later  than  1861,  the  claim  may  be  regarded  as 
part  of  the  testimony  to  a  revolutionary  change,  which  has 
made  the  general  Government  a  sovereign  or  supreme  gov- 
ernment in  respect  to  the  States.  ^ 

In  the  nature  of  the  case,  any  attempt  to  marshal  and 
weigh,  in  one  or  many  ordinary  volumes,  testimony  of 
these  descriptions  and  the  various  other  indices  of  public 
belief  would  be  presumptuous.  But,  for  the  scope  of  this 
essay,  it  is  enough  that  the  opinion  ma7/  be  generally  or 
perhaps  "  overwhelmingly  "  adopted,  especially  in  those 
parts  of  the  country  where  the  greater  number  of  popula- 
tion, greater  physical  resources  and  material  wealth  are 
located,  and  which,  besides,  include  topographically  the 
States  occupying  the  best  strategic  position,^  that  sover- 
eignty is  noiv  held  without  reference  to  the  existence  of 
the  States,  or  of  the  organized  political  peoples  of  the  States 
in  voluntary  union,  as  political  personalities  capable  of  self- 
continuation  by  having  the  ultimate  power  to  determine 
the  elective  franchise  in  each  State  for  the  State  and  for 
the  general  Government,  and  that  it  is  noiv  vested  in  the 
aggregated  millions,  the  inorganic  people,  the  nation  as  a 

1  The  long  note  32,  in  Mr.  Dana's  Wheaton,  entitled  "  The  United  States 
a  Supreme  Government,"  presents  a  history  of  the  civil  war,  mostly  in  re- 
lation to  international  law.  The  editor  speaks  of  "  the  republic  of  the  United 
States,"  meaning  the  general  Government,  as  "  the  final  judge  in  a  dispute 
between  itself  and  tiie  State  as  to  the  limits  of  its  sphere,"  in  connection  with 
the  statement  that  "  the  doctrine  more  generally  received  is,  that  the  people 
of  the  entire  republic  as  a  political  community  created  the  republic,  as  the 
people  of  each  State  created  the  separate  States."  He  also  concludes,  ''  It 
is  enough  to  say  that  the  supremacy  of  the  republic  within  its  sphere  to 
determine  the  limits  of  its  sphere  is  now  settled,"  —  meaning,  apparently, 
settled  by  the  result  of  the  war.     Compare  remarks  ante,  p.  324,  note. 

■■2  That  is  in  reference  to  the  other  parts  of  the  country,  in  the  supposed 
case  that  this,  as  "  the  great  point  of  the  debate,  "should  at  a  future  time  come 
"  after  all  other  modes  of  debate  had  been  exhausted,  to  be  referred  to  the 
arbitrament  of  battle,"  adopting  Mr.  Curtis's  language.  Ante,  p.  S'J,  note. 
As  to  the  question  of  force,  generally,  see  ante,  p.  146. 


354  THE   PLACE   OF   SOVEREIGNTY. 

The  Doctrine  shown  in  the  Action  of  the  Government. 

mass,  the  "  sovereign  people,"  in  that  sense,  now  repre- 
sented by  the  general  Government,  which  therefore  is  noiv 
a  supreme  or  sovereign  government,  without  reference  to 
the  existence  of  States  in  a  voluntary  union. 

It  may,  I  think,  be  affirmed  with  truth  that  the  general 
policy,  system,  or  political  method  followed  by  the  Gov- 
ernment in  suppressing  the  Eebellion  as  the  rebellion  of 
States  —  a  policy  which  was  continued  by  the  reconstruc- 
tion measures,  in  treating  those  States  as  still  members  of 
the  Union,  though  to  be  dealt  with  as  delinquent  States, 
whose  obligations  toward  the  general  Government,  or  the 
nation  represented  b}^  the  general  Government  were  to  be 
enforced  by  that  Government  —  was  founded  on  tliis  idea.^ 

But,  as  this  idea  or  doctrine  had  no  support  in  tliS  his- 
torical record  before  1861,  this  general  policy  must  be 
regarded  as  now  legitimated  by  revolutionary  action, 
whether  it  has  been  the  action  of  the  people  of  the  whole 
country  as  a  mass,  or  of  the  majority  of  such  people,  or  of 
the  stronger  portion  of  such  people,  though  perhaps  only  a 
minority.  ^ 

1  Ante,  p.  .321.  For  the  justification  of  this  opinion  I  must  rely  on  the 
review  of  these  methoils  presented  in  the  earlier  chapters.  Of  course,  I  do 
not  ignore  opinions  like  tliat  of  Mr.  G.  T.  Curtis,  who  has  seen  no  incompat- 
ibility between  the  measures  of  the  Government  and  tlie  continued  existence 
of  the  eleven  States,  —  as  appears  from  his  article,  "A  Strong  Government," 
in  Harper's  Magazine, —  June,  1880,  p.  106.  In  continuing  the  passage  cited 
ante,  p.  801,  from  tlie  "  Discourse  "  Mr.  Curtis  speaks  of  the  war  having  settled 
tliat  the  powers  of  tlie  general  Government  "  remain  definite,  specific,  and  lim- 
ited ;  that  the  rules  for  determining  their  limitations  remain  just  what  they 
always  were  ;  and  tliat  they  can  be  enlarged  or  increased  or  diminished  only 
by  the  process  of  amending  the  Constitution.  Every  principle  wiiicii  marks 
the  dividing  line  between  the  sovereignty  of  the  United  States  and  the  sov- 
ereignty of  each  separate  State  remains  in  full  force."  But  such  conclusions 
involve  the  idea  of  the  Constitution  operating  by  its  own  intrinsic  force  as  a 
law  for  the  division  of  sovereign  power.  Compare  ante,  p.  298.  As  said  in 
the  beginning  of  this  essay,  the  war  coidd  not  settle  anytliing.  It  is  the 
action  of  the  Government,  as  a  government,  which  exiiibits  the  political 
doctrine. 

2  There  is  no  possibility  of  demonstrating  that  the  Constitution  and  the 
Government  under  it  ever  had  support  in  the  choice  of  a  numerical  majority 


THEORY   OF   OUR   NATIOISTAL   EXISTENCE.  355 

The  Usurpation, — how  proved. 

Therefore,  it  may  also  be  said  with  historic  truth  that,  — 
in  supporting  this  general  policy,  system,  or  political 
method,  and  in  sustaining  measures  which,  on  the  supposi- 
tion of  the  continued  existence  of  the  eleven  States  as  members 
of  the  Union,  were  in  violation  of  the  letter  and  spirit  of  the 
written  Constitution  —  the  people  of  the  Northern  States 
consented  to  a  usurpation  on  the  part  of  the  persons  con- 
stituting the  general  Government ;  that  is,  not  merely  to 
a  temporary  usurpation  of  power  over  those  eleven  States  of 
the  Confederacy  and  their  inhabitants,  but  to  a  usurpation 
of  powers  previously  vested  in  the  political  peoples  of  the 
States  remaining  in  voluntary  union,  —  the  onl}^  "United 
States  "  then  known  as  sovereign  to  history  and  by  their 
own  public  law  or  political  Constitution. 

But  when  a  revolution  is  recognized,  there  should  be 
an  end  of  all  controversies  based  on  an  earlier  history. 
There  is  no  question  of  constitutionality  or  unconsti- 
tutionality in  a  revolutionary  change.  The  only  alterna- 
tive for  anybody  is  to  accept  the  change  by  making  the 
best  of  it,  or  to  resist  it  and  take  the  consequences ; 
which  choice  of  alternatives  is  about  equal  to  liberty  to 
decide  whether  there  has  or  has  not  been  a  revolution 
at  all.^ 

of  the  nation  as  a  mass  of  individuals.  Least  of  all,  that  it  had  such  sup- 
port during  the  Rebellion  and  in  tlie  reconstruction  era,  when  great  differ- 
ences of  opinion  at  the  North  were  known  to  exist.  All  that  is  demonstrable 
is,  that  an  executive  and  congress  and  judiciary,  sustained  by  the  voters, 
acting  by  majorities,  in  the  States  remaining  voluntarily  united,  carried 
their  will  into  execution.  But  it  is  not  impossible,  even  if  it  be  improbable, 
that  the  majority  of  tlie  whole  nation,  as  one  mass  of  individuals,  were 
more  or  less  opposed  to  that  will. 

1  In  its  ordinary  acceptation,  "  revolution  "  is  a  shifting  of  the  seat  of  sov- 
ereign power,  not  merely  a  ciiange  of  law  by  the  will  of  the  sovereign.  The 
proposition  that  "  the  people,"  or  all  the  persons  governed,  are  always  of 
necessity  the  real  sovereign  (comp.  ante,  p.  325)  appears  to  involve  tlie 
possibility  of  sovereignty  in  revolution,  or  what  Mr.  Jameson  calls  irregular 
exercise  of  sovereignty  as  against  regular  exercise  of  sovcreignt3^  Const. 
Conv.  §§  56,  569.  Not  meaning  the  acquisition  of  sovereignty  by  some  who 
before  had  been  subject,  nor  a  shifting  of  tiie  seat  of  sovereignty,  but  the 


356  THE   PLACE   OF   SOVEREIGNTY. 

Position  of  the  Judiciary  in  Revolutions. 

If,  then,  the  Supreme  Court  should  have  supported,  or 
should  hereafter  support,  as  justified  by  a  new  state  of 
political  facts,  and  independently  of  changes  in  the  written 
Constitution  by  Amendments,  any  methods  of  government 
or  congressional  legislation  which  it  might  before  the  war 
have  held  unconstitutional,  it  may  not  be  necessarily 
proper  to  speak  of  such  action  of  the  judiciary  and  "  the 
political  department "  as  usurpation.  If  a  new  state  of 
political  facts  may  be  supposed  to  have  resulted  from  the 
will  of  the  unorganized  nation  or  people,  as  against  the 
organized  nation,  or  people  of  the  States  in  a  voluntary 
union,  the  decisions  of  the  court  and  the  action  of  the 
executive  or  of  Congress  will  be  only  the  consequence  of  a 
revolution,  for  which  no  persons  should,  from  the  mere 
fact  of  their  personal  connection  with  the  Government 
when  existing  under  the  earlier  condition  of  things,  be 
held  responsible  as  usurpers. 

With  the  conceptions  which  we  have  accustomed 
ourselves  to  cherish  of  the  Constitution  as  a  self-acting 
machine  for  determining  or  preserving  the  location  of 
sovereign  power,  it  is  difficult  for  us  to  acknowledge  not 
only  that  it  is  possible  for  persons  holding  the  executive, 
legislative,  and  judicial  functions  under  the  written  Con- 
stitution, as  law,  to  take  this  view,  without  regard  to  the 
historical  question  as  it  stood  before  the  war,  but  even  that 
it  has  become  their  clear  duty.  That  it  is  so  now  is  not  be- 
cause they  had  sworn  to  support  the  Constitution  as  a  law, 
nor  yet  because  they,  as  citizens,  are  bound  by  allegiance 
to  those,  whoever  they  may  be,  from  whom  the  Constitu- 

revolutionary  act  of  the  people,  as  sovereign,  against  some  government 
supposed  to  exist  only  as  the  organ  of  such  sovereign  people.  Writers  who 
find  sovereignty  inherent  in  the  people  as  a  mass  are  obliged  to  assume  that 
revolutions  are  always  the  intelligent  act  of  a  large  majority  of  the  com- 
munities in  which  they  occur.  In  point  of  fact  it  is  impossible  to  prove,  in 
tlie  case  of  any  recorded  revolution,  tliat  it  was  by  the  desire  of  a  mnjority, 
and  in  most  cases  revolutions  have  been  obviously  the  work  of  a  minority. 


THEORY   OF   OTJR   NATIONAL   EXISTENCE.  357 

How  Revolution  is  accepted  by  a  Court. 

tion  at  any  moment  may  derive  its  authority  as  law,^  but 
because,  by  this  tlieory  or  doctrine,  they,  collectively  or  as 
a  government,  alone  represent  or  stand  for  a  sovereign 
nation,  which,  without  them,  would  not  be  known  as  a 
sovereign  nation  at  all. 

This  being  the  primary  political  fact,  it  is,  moreover, 
2:)lain  that  it  is  now  obligatory  on  each  and  every  one, 
whether  official  or  private  person,  to  obey  this  Government 
as  the  only  sovereign  ;  and  the  duty  of  all  citizens,  native 
or  naturalized,  to  defend  and  maintain  this  Government  as 
the  only  claimant  of  their  allegiance. 

As  has  already  been  indicated,^  this  question  —  whether 
such  change  has  occurred  —  is  one  which  judges  cannot 
determine  in  virtue  of  their  office  ;  but  they  must,  each 
one  for  himself  as  a  private  citizen,  make  up  their  minds 
by  the  only  evidence  which  settles  such  a  question,  — his- 
tory, brought  down  to  the  present  moment,  —  agreeing,  as 
each  one  of  us  must,  that  whenever  the  bulk  of  the  com- 
munity may  recognize  any  present  possession  of  sovereign 
power,  whether  different  from  an  older  one  or  not,  courts 
of  law  must  accept  such  possession  as  fact  if  they  consent 
to  be  courts  of  law  at  all. 

It  might  be  thought  plain  enough  from  the  very  defi- 
nition of  the  term  "  revolution  "  that  any  who  will  rest 
on  the  idea  of  a  revolution  must  exclude  all  support  either 

1  If  a  formal  oath  of  allegiance  has  been  unknown  in  this  country,  it  has 
been  so  because  nobody  could  say  to  whom  it  was  due  by  any  of  the  theories 
heretofore  acknowledged.  Compare  ante,  pp.  274,  2n8,  329  and  notes.  The 
common  opinion  may  be  that  the  American  citizen  acknowledges  no  al- 
legiance to  anyl)ody.  U.  S.  Rev.  Stat.,  §  1756,  prescribe  an  oath  for  a 
person  taking  office,  —  that  he  "  will  support  and  defend  the  Constitution  of 
the  United  States  against  all  enemies  foreign  and  domestic,"  and  "  will  bear 
true  faith  and  allegiance  to  the  same,"  meaning  apparently  to  the  Consti- 
tution. This  is  another  manifestation  of  the  "  fetish."  Tiie  faith  and  alle- 
giance can  be  due  only  to  human  beings.  The  alien,  on  being  naturalized, 
is  only  sworn  "  to  support  tlie  Constitution  of  the  United  States  and  re- 
nounce allegiance  to  every  foreign  prince,  potentate,  State,  or  sovereignty." 

2  Ante,  p.  5. 


358  THE   PLACE   OF   SOVEREIGNTY. 

Probability  of  two  misleading  Tendencies. 

from  any  asserted  basis  in  an  earlier  history'  or  from  any 
foundation  in  abstract  political  principles ;  as,  also,  that 
any  who  will  rest  on  previous  history,  or  on  deduction 
fiom  abstract  principles,  must  exclude  all  support  from  a 
revolution. 

Yet,  as  long  as  there  is  a  doubt  whether  "  the  bulk  of 
the  community,"  to  use  Austin's  expression,  recognize 
oi  accept  such  a  revolutionary  change  as  the  fact,  or,  to 
use  Mr.  Lowell's  phrase,  whether  "■  the  people  are  over- 
whelmingly united  "  in  wishing  such  a  change,  any  one 
who  has  sworn  to  support  the  Constitution  as  law  may  feel 
himself  in  a  somewhat  embarrassing  position.  For,  as 
has  already  been  indicated,^  the  legislative  and  executive 
powers  of  the  general  Government  must  be  greatly  aug- 
mented if  it  is  hereafter  to  stand  in  the  relation  of  politi- 
cal superior  to  the  States ;  that  is,  to  the  poHtical  peoples 
of  the  several  States,  as  well  as  the  State  governments. 

Under  such  circumstances  it  would  not  be  strange  if 
those  who  speak  as  jurists,  whether  on  the  bench  or  in 
private  station,  deshing  to  avoid  the  charge  of  being  them- 
selves revolutionists,  should  follow  the  well-beaten  track  of 
Marshall,  Story,  Webster  and  others  attempting  to  "  escape 
history  "  and,  instead  of  recognizing  a  new  location  of 
sovereign  power,  as  by  a  revolution,  should  endeavor  to 
persuade  themselves  and  other  people  that  this  had  always 
been  the  political  fact. 

It  may  be  also  anticipated  that,  under  the  same  circum- 
stances, the  disposition  to  construe  any  written  Constitution 
according  to  one's  subjective  views  of  poHtical  expediency 
will  be  likely  to  divert  the  jurist  from  the  proper  objective 
recognition  of  existing  political  facts.  This  disposition,  the 
existence  of  which  is  unavoidable,  has  always  been  more 
or  less  traceable  in  our  juridical  literature,  and  the  more 
visibly  when  unprecedented  events  have  called  for  new  ap* 
1  Ante,  pp.  342-345. 


THEORY   OF    OUR   NATIONAL   EXISTENCE.  359 

Revolution l)y  juristical  Argument. 

plications  of  the  fundamental  laws,  —  applications  which 
may  be  called  either  innovations  or  conservative  measures 
according  to -the  political  theory  by  which  they  are  tested. 

There  can  be  no  need  to  refer  particularly  to  any 
judicial  opinions  pronounced  during  the  last  twenty 
years,  or  any  earlier  period  of  our  history,  as  illustrat- 
ing this. 

This  same  disposition  might  be  indulged  even  to  the 
extent  of  inducing  some  jurists  to  fancy  that  they  should, 
of  themselves  and  aside  from  the  evidence  in  the  opinion 
of  the  general  public,  recognize  in  certain  events  a  politi- 
cal revolution,  a  change  in  the  location  of  sovereign  power, 
if  in  their  individual  view  of  political  expediency  such  a 
revolution  should  seem  to  be  called  for  as  a  benefit  to  the 
nation  or  to  maintain  national  life.^ 

But  any  person  who  may  support  a  supposed  investiture 
of  sovereignty,  either  by  a  false  citation  of  the  historical 
record,  or  by  making  his  own  political  predilections  the 
criterion  of  the  legitimacy  or  of  the  existence  of  political 
changes,  would,  instead  of  avoiding  the  recognition  ol 
revolution,  make  himself  one  of  the  instruments  for  effect- 
ing it. 

In  the  lectures  already  referred  to,^  entitled  "  Revolution 
and  Reconstruction,"  p.  9,  Judge  Parker  said,  — 

1  It  had  been  so  common  for  Americans  to  speak  of  "  the  right  of  revo- 
lution "  (see  a7ite,  p.  189,  note)  that  the  action  of  the  Government  in  for- 
cibly resisting  secession  seemed  inconsistent  to  some  foreign  observers. 
(See  ante,  p.  154,  note.)  Successful  revolution  originates  legal  riglits,  wliether 
it  is  morally  justifiable  or  not.  Arguments  against  the  validity  of  the 
secession  ordinances  founded  on  moral  considerations  may  be  found  in  many 
judicial  opinions,  and  it  might  be  inferred  from  their  language  that  some  of 
our  judges  and  text-writers  think  that  the  revolution  of  1776  would  not 
have  been  followed  by  the  consequences  of  successful  revolution  unless 
it  could  be  held  justifiable  as  resistance  to  illegal  action  of  the  Crown  and 
Parliament.  Compare  Cooley's  Principles  of  Const.  Law,  p.  25.  This  habit 
of  thought  might  lead  to  juristical  discovery  of  political  change,  founded 
on  individual  views  of  political  expediency. 

2  Ante,  p.  268,  note  2. 


860  THE   PLACE  OF   SOVEREIGNTY. 

Judge  Parker  on  revolutionary  Construction. 

"  I  shrink  from  revolution,  masked  under  the  cover  of  an  as- 
sumed constitutional  authority  derived  from  false  constructions  of 
the  Constitution  ;  .  .  •  and  more  especially  do  I  look  with  dread 
to  the  future  when  we  have  entered  upon  such  a  revolution,  not 
with  the  honest  confession  that  it  is  a  revolution  we  are  seeking, 
that  we  are  exercising  powers  aside  from  and  beyond  the  Con- 
stitution and  endeavoring  to  change  the  powers  of  the  Government 
by  a  resort  to  measures  which  the  Constitution  does  not  authorize  ; 
but  instead  thereof  are  attempting  to  give  the  cloak  of  consti- 
tutional authority  to  the  adoption  of  such  measures  by  most  un- 
warrantable constructions  of  the  fundamental  law,  —  constructions 
which  pervert  its  meaning,  and  render  it  no  longer  a  safeguard 
against  despotic  power," 

I  have  hereinbefore  argued  that  the  political  measures 
which  Judge  Parker  was  opposing  might,  as  a  whole,  be 
sustained  because,  under  the  true  theory  of  our  national 
existence,  the  so-called  "  Confederate  States  "  had  ceased 
to  be  States,  that  is,  political  members  of  the  Union.  But 
if  the  various  other  theories  upon  which  these  measures 
had  been  based  by  their  different  advocates  at  that  time 
have  no  historical  foundation  in  our  public  law,  Judge 
Parker  was  sufficiently  justified  in  denouncing  them  as 
revolutionary. 1^ 

When  revolutions  are  accomplished  facts  there  is  no  use 
in  shrinking  from  them ;  at  any  rate,  it  is  impossible  to 
get  out  of  their  way,  however  distasteful  the}^  niay  be. 
But  if  Judge  Parker  tliought  that  this  way  of  effect- 
ing a  revolution,  through  juristical  perversion  of  history 
and   political   construction    of    written  law,  was  not,    on 

1  Judge  Parker  in  this  place  refers  to  a  lecture  delivered  by  tlie  Russey 
professor,  Judge  Emory  Wasliburn,  closing  the  previous  term  of  tiie  Harvard 
Law  School,  entitled  "  The  Duty  of  the  Profession  to  the  Times,"  which 
Judge  Parker  appears  to  have  understood  as  teaching  that  a  reorganization 
of  the  government  of  tlie  country  was  to  be  sought  for  by  means  of  new 
constructions  and  interpretations  of  the  written  Constitution  by  that  portion 
of  the  community  which  had  received  legal  training.  The  portion  of  the 
lecture  V)y  Judge  Washburn  referred  to  is  printed  in  the  Monthly  Law  Re- 
porter, July,  1864,  p.  481. 


THEOKY   OF   OUR  NATIONAL   EXISTENCE.  361 

Future  Position  of  the  general  Goverment. 

the  whole,  as  easy  or  economical  a  way  as  the  ordinary 
method,  by  sheer  force,  he  might  naturally  say  that  he 
shrank  from  tlie  prospect  offered  by  attempting  to  bring  it 
about  in  that  manner. 

There  is  reason  enough  for  thinking  it  a  poor  way  ;  for 
the  attempt,  by  escaping  history  in  this  manner,  had  been 
going  on  ever  since  the  Constitution  was  adopted ;  while 
the  courts  and  the  profession,  to  say  nothing  of  the  country 
at  large,  had  always  been  in  disagreement,  before  "  the 
great  point  of  the  debate,"  as  to  the  location  of  sov- 
ereign power,  came  "  to  be  referred  to  the  arbitrament  of 
battle."  1 

But,  as  already  intimated,  there  may  be  much  reason  to 
think  that  this  theory  or  doctrine —  that  sovereignty  is 
now  vested  in  the  nation  as  a  mass  of  so  many  millions 
of  persons  —  is  now  so  "overwhelmingly"  asserted  by  the 
general  public,  independently  of  all  such  juristical  en- 
gineering, that,  on  the  principle  already  stated,  it  must  now 
be  accepted  for  political  truth,  whatever  history  before  the 
war  may  declare.^  It  will  therefore  be  now  necessary  that 
the  general  Government  should  recognize  it  by  taking  the 
position  of  being  the  sole  representative  of  sovereignty 
known  to  our  public  law, —  a  position  which,  being  once 
fully  established,  makes  the  name  of  "  national  Govern- 
ment "  an  eminently  proper  designation.^ 

1  Ante,  p.  89.  And  now  tiiose  who  say  that  it  has  been  decided  by  that 
"arbitrament"  are  no  more  in  harmony  as  to  the  decision  than  they  liad  been 
as  to  the  issue  to  be  decided,  Mr.  G.  T.  Curtis  holding  that  tlie  division  of 
sovereignty  between  the  States  and  the  Government  has  been  estabhshed, 
while  Mr.  Pomeroy  and  Mr.  Jameson  hold  that  it  is  the  unitary  possession  of 
sovereignty,  each  assuming  his  own  theory  established  by  the  military  success 
which,  of  itself,  proves  nothing  whatever.     Ante,  pp.  3,  4. 

2  Ante,  p.  U8. 

3  In  my  earlier  work.  Law  of  Freedom  and  Bondage,  i,  p.  408,  the  term 
"  national  Government "  was  preferred,  not  as  indicating  that  the  Govern- 
ment was  superior  to  the  States,  according  to  the  idea  above  described,  but 
because,  in  acting  through  that  Government  for  common  ends,  the  States, 
united,  constituted  a  nation.      In  the  preceding  pages  of  this  essay  the  term 


362  THE   PLACE   OF    SOVEREIGNTY. 

Future  Construction  of  the  Constitution. 

But  if  tins  position  of  the  general  or  national  Gov- 
ernment, instead  of  being  merely  the  continuance  of  its 
former  relation  to  the  States  and  the  people,  has  been  the 
result  of  a  political  revolution,  the  judiciar}'  of  the  whole 
country,  and  all  who  apply  the  Constitution  as  written  law, 
may  be  obliged  to  disregard  much  that  had  formerly  been 
affirmed,  in  the  Supreme  Court  and  elsewhere,  as  to  the 
recognition  of  the  text  of  the  Constitution,  and  still  more 
as  to  its  construction  and  interpretation.^ 

It  is  therefore  not  improper  to  inquire  whether  the  Su- 
preme Court,  especially,  has  indicated  any  conception  of  a 
new  relation  between  the  general  Government  and  the 
States,  as  founded  on  new  political  conditions  ;  relying  on 
the  history  of  the  present,  so  to  speak,  and  no  longer  look- 
ing for  guidance  to  that  of  the  past. 

In  its  application  by  courts  of  law,  any  written  Consti- 
tution is  like  a  statute.  An  existing  text,  or  form  of 
words,  is  to  be  recognized  in  the  first  instance,  and  after- 
wards this  text  is  to  be  ex^jlained  or  construed  in  its  appli- 
cation to  legal  relations. 

These  questions,  therefore,  are  alwa3's  proper :  — 

1.  How  will  the  court  recognize  future  clianges  in  this 
written  law  ? 

2.  By  what  canons  will  the  court  construe  or  interpret 
its  provisions  ? 

"general  Government"  has  been  employed  with  the  wish  to  avoid  any 
suggestion  of  political  preference  which  might  be  attributed  to  using  either 
the  term  "national"  or  the  term  "federal." 

1  "  Among  those  who  profess  to  be  the  special  advocates  of  national 
rights  arc  also  persons  of  extreme  views,  some  of  whom  contend  that  the 
nation  is  to  be  considered  the  fountain  and  source  of  all  sovereignty,  and  that 
the  States  are  emanations  from  it,  —  a  view  that  would  change  ra(]ically  the 
rules  of  constitutional  construction  which  the  courts  have  laid  down." 
Cooley's  El.  of  Const.  Law,  p.  34..  I  had  (aH<e,  p.  114,  note)  classed  this 
author  with  those  to  whom  he  refers  in  this  passage,  judging  from  his  argu- 
ment in  Constitutional  Limitations,  pp.  5,  0  ;  but  from  the  more  recent 
work,  it  may  be  inferred  that  he  adheres  to  the  theory  of  a  division  of  sov- 
ereignty, as  in  the  citation  from  the  same  book,  ante,  p.  106,  note. 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  863 

Possible  Extent  of  Change  by  Amendments. 

As  to  the  first  inquiry,  it  must  here  be  assumed  that, 
whatever  political  change  may  have  hitherto  occurred,  no 
variation  in  the  letter  of  the  Constitution  will  be  recog- 
nized in  any  court  of  law  unless  found  in  some  Amend- 
ment supposed  by  the  court  to  have  been  adopted  in  the 
manner  provided  in  the  existing  Constitution. 

If  the  theory  under  which  the  Constitution  is  the  record 
of  a  treaty  or  compact  between  independent  sovereigns  ^  is 
excluded,  there  would  appear  to  be  no  limit  assignable 
for  the  possible  alteration  of  the  written  Constitution  by 
Amendments.  Under  any  other  view  it  always  would  be 
supposable  that  the  States  by  the  action  of  three  fourths  of 
their  number  might  grant  or  surrender  to  the  general  Gov- 
ernment all  the  powers  over  their  citizens  originally  spoken 
of  as  "  reserved  "  to  themselves,^  and  thus  cease  to  exist 
politically  as  the  sources  of  law  and  government,  con- 
tinuing, perhaps,  as  geographical  districts  in  an  elective 
system  for  maintaining  the  personnel  of  the  national 
Government  under  a  law  of  Congress. 

Even  under  the  theory  that  the  States  in  union  had  been 
the  autonomic  source  of  power,^  no  such  transfer  of  political 
rights  by  Amendments  could  be  called  revolutionary  in 
the  ordinary  sense,^  supposing  each  State  to  have  acted 
freely. 

1  Ante,  pp.  99,  100. 

2  According  to  the  view  hereinbefore  expressed  (ch.  iv.),  the  States,  in 
union,  "reserved"  these  powers,  as  possessing  them  before.  It  has  been 
growing  more  and  more  common  to  use  the  phrase  —  "  reserved  to  the  States 
by  tlie  Constitution  "  —  as  if  "  reserved  "  was  equivalent  to  granted  or  assigned 
by  the  act  of  somebody  superior  to  the  States,  who  might  be  tlie  hypo- 
thetical "  people  "  or  "  nation."  (Ante,  p.  114.)  As  already  contended  {ante, 
p.  119),  no  powers  could  be  granted  or  surrendered  by  the  States  to  the  general 
Government,  because  the  latter  had  no  independent  existence.  It  could  hold 
power  only  by  delegation.  (Ante,  p.  131.)  But  if  this  Grovernment  is  now 
capable  of  making  its  own  existence  its  moral  end,  as  representative  of  "  the 
people  "  or  the  nation  as  a  mass,  its  powers  are  no  longer  delegated,  but  be- 
long to  it  by  right  of  possession  above  law. 

8  Ante,  pp.  139,  140. 

*  No  government  continues  without   more   or  less  constant  alteration. 


364  THE  PLACE   OF   SOVEREIGNTY. 

Adoption  of  Amendments.  —  How  known. 

It  ma}^  alwaj^s  have  been  matter  of  doubt,  under  any 
theory,  whether  the  actual  adoption  of  any  Amendment  can 
be  passed  upon  by  the  judiciary,  if  the  question  shouki  be 
raised  in  a  case  at  law  depending  on  the  effect  of  such 
Amendment ;  that  is,  whether,  under  any  theory,  the  Su- 
preme Court  could  refuse  to  recognize,  as  an  Amendment, 
provisions  which  had  been  declared  by  another  department 
to  have  been  actually  adopted  according  to  the  terms  of 
the  constitutional  requirements. 

It  was  hereinbefore  contended  that  the  question  of  the 
existence  or  non-existence  of  a  State  or  States  of  the 
Union,  to  be  counted  among  the  whole  number  of  which 
three  fourths  may  adopt  an  Amendment,  must  be  purely 
political  and  beyond  the  cognizance  of  the  judiciary.^  But 
though  this  be  admitted,  still  the  judiciary  may  occupy  a 
different  position  as  to  the  question  whether  an  existing 
State  of  the  Union  had  or  had  not  exerted  a  power,  regu- 
lated by  the  Constitution  as  latv,  to  maintain  which,  as 
law,  all  the  States  are  concerned. 

The  only  indications  of  opinion,  bearing  on  this  inquiry, 
given  by  the  Supreme  Court  are  those  in  some  of  the  cases 
already  cited,^  in  Avhich  it  appears  to  have  been  the  in- 
tention of  the  judges  to  leave  the  question  of  the  actual 

Burke  said,  "  A  state  without  the  means  of  some  change  is  without  the 
means  of  its  conservation."  Some  transmission  of  sovereignty  is  always 
going  on.  But,  as  I  understand  the  term,  a  "revolution"  which  nobody 
knows  anything  of  is,  by  definition,  no  revolution.  Mr.  Jameson  dis- 
tinguislies  revolutions  of  three  classes,  the  third  being  "  such  as  are  con- 
summated quietly,  without  a  breach  of  the  peace  or  even  excitement, 
often  without  a  distinct  perception  on  the  part  of  the  people  of  their  occur- 
rence" (Const.  Conv.  p.  101),  which  is  a  singular  definition,  considering 
the  author's  theory  that  "the  people"  are  the  sovereign,  if  revolution  in- 
volves disturbance  of  sovereignty.  The  revolution  which  I  have  supposed 
possible  is,  on  the  contrary,  to  be  proved,  if  at  all,  by  the  conscious  recog- 
nition of  "the  people";  not  one  to  be  displaj^ed  by  juristical  legerdemain, 
or  the  process  dreaded  by  Judge  Parker  [ante,  p.  3G0). 

1  Ante,  p.  284. 

2  Georgia  r.  Stanton,  G  AVall.  50,  a7ite,  p.  213 ;  White  v.  Hart,  13  Wall. 
649,  ante,  p.  19. 


THEORY   OF   OTJR   NATIONAL   EXISTENCE.  365 

Adoption  of  Amendments.     Position  of  the  Judiciary.  • 

adoption  of  an  Amendment  entirely  to  the  discretion  of 
some  other  department  of  the  general  Government,  as 
being  a  political  question  as  distinguished  from  a  legal  one. 

It  may  be  said  that  each  judge,  in  accepting  his  com- 
mission from  the  executive,  under  the  laws  of  Congress, 
recognizes  that  the  existence  of  the  Constitution,  as  a  politi- 
cal question,  is  settled  for  him  by  the  action  of  the  other 
functionaries  of  the  Government  as  a  "  political  depart- 
ment." From  this  it  might  be  argued  that  the  existence 
of  an  Amendment,,  as  part  of  that  Constitution,  must  be 
equally  a  political  question,  and  that  as  such  it  is  equally 
determined  for  each  member  of  the  judiciary  by  such 
"  political  department." 

On  the  other  hand,  it  may  be  said  that  the  adoption  of 
an  Amendment  takes  place  under  the  Constitution  itself,  as 
latv  ;  that  the  Amendment,  therefore,  differs,  as  to  the  con- 
ditions of  its  first  recognition  by  the  courts,  from  the 
previous  recognition,  by  each  justice  individually,  of  the 
Constitution  as  political  fact.  This  consideration  might 
appear  to  bring  the  question  of  its  adoption  within  the 
sphere  of  judicial  cognizance,  if  the  rights  or  duties  de- 
pending upon  its  existence  as  law  should  be  brought  in 
question  by  a  legal  controversy. 

The  case  may  be  supposed  that  it  should  be  perfectly 
well  known  that  among  the  three  fourths  reckoned  by  the 
"political  department"  as  having  adopted  a  proposed  Amend- 
ment there  were  some  States  which  had  not  been  equally 
free  with  the  others  in  accepting  or  rejecting  such  Amend- 
ment.^    But  whether  the  judiciary,  by  receiving  the  testi- 

1  "  The  three  constitutional  Amendments  .  .  .  were  adopted  by  the  con- 
current action  of  the  great  body  of  good  citizens  who  maintained  the 
authority  of  the  National  Government  and  the  integrity  and  perpetuity  of 
the  Union  at  such  a  cost  of  treasure  and  life,  as  a  wise  and  necessary  em- 
bodhnent  of  the  just  results  of  the  war.  Tlie  people  of  tlie  former  slave- 
holding  States  accepted  these  results,"  etc.  President  Hayes's  Second  Annual 
Message,  Dec.  2,  1878.     Macpherson's  Handbook  for  1880,  p.  3.     From  this 


366  THE   PLACE   OF   SO\Ti:EEIGXTr. 

State  Action  in  adopting  Amendments. 

mony  of  another  department  as  conclusive  in  that  instance, 
could  be  thought  to  have  individually  sanctioned  a  revo- 
lutionary usurpation  depends  mainly  upon  the  theory  of 
our  national  existence  which  may  be  recognized. 

For,  whatever  inference  might  be  drawn  from  any  other 
theory,  the  States  could  not  be  entirely  autonomic  in  the 
adoption  of  Amendments  under  that  theory  which  makes 
all  the  cajDacities  of  a  State  of  the  United  States  an  exercise 
of  rights  under  a  law  prescribed  by  the  sovereign  nation  or 
people,  immediately  represented  by  a  supreme  national 
government.^  It  would  seem  that  the  State's  faculty  of 
action  in  respect  to  the  acceptance  of  any  Amendment 
proposed  by  Congress  would,  under  such  a  theory,  have  also 
some  of  the  characteristics  of  a  duty,  which  would  at  the 
same  time  imply  the  co-existence  of  a  power  in  some  other 
hands  to  enforce  it  as  such. 

The  question  of  the  actual  adoption  of  an  Amendment 
by  any  one  or  more  States  never  having  been  raised  in  the 
courts,  it  will  be  matter  of  conjecture  upon  what  theory 
the  judges  may  confide  in  the  "political  department"  for 
knowledge  of  the  action  of  three  fourths  of  the  States.  In 
the  absence  of  decisions,  the  topic  is  so  far  only  political, 
in  distinction  from  legal,  that  as  yet  it  has  hardly  been 
brought  by  text-writers  within  the  sphere  of  constitutional 
jurisprudence.  But  as  the  matter  now  stands,  a  juristical 
prognostication  on  this  subject  may  be  worthy  of  consider- 
ation on  account  of  its  political  significance. 

In  "  The  Constitutional  Convention  "  §  83,  Mr.  Jameson 
has  observed,  — 

language  it  would  naturally  be  inferred  that  the  Southern  States  were  not 
estimated  in  tlie  adoption  of  these  Amendments,  and  also  that  it  is  proi)er  for 
"the  political  department"  to  distinguish,  by  their  opinions  on  the  subject 
matter  of  the  Amendments,  certain  "  good  citizens"  as  tlie  proper  authority 
for  adopting  such  Amendments. 
1  Compare  ante,  p.  350. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  367 

A  Suggestion  by  Mr.  Jameson. 

"  But  it  is  not  enough  that  a  Constitution  provide  a  mode  for 
effecting  its  own  amendment ;  it  is  necessary  that  there  should  be 
developed  a  political  conscience,  impelling  to  make  amendments  in 
the  written  Constitution  when  such  as  are  really  important  have 
evolved  themselves  in  the  Constitution  as  a  fact.  Our  courts  can, 
in  general,  recognize  no  law  as  fundamental  which  has  not  been 
transcribed  into  the  book  of  the  Constitution.  When  great  his- 
torical movements,  like  those  which  have  lately  convulsed  the  United 
States,  have  resulted  in  important  political  changes,  that  are  so  con- 
summated and  settled  as  to  indicate  a  solid  foundation  in  the  actual 
Constitution,  they  should  be  immediately  registered  by  the  proper 
authority  among  the  fundamental  laws.  Why  embarrass  the  courts 
and  fly  in  the  face  of  destiny  by  refusing  to  recognize  accomplished 
facts  ?  A  point  of  honor  should  in  such  cases  be  cultivated,  com- 
pelling the  citizen  to  acquiesce  in  the  decrees  of  the  Almighty  as 
written  in  events,  similar  to  that  which  forces  an  English  minister, 
on  an  adverse  division  upon  an  important  measure,  to  resign  his 
office.  If  political  self-abnegation  cannot,  under  written  Consti- 
tutions, be  developed  to  the  extent  indicated,  it  may  be  laid  down  as 
certain  that  no  commonwealth  governed  by  such  a  Constitution 
can  long  survive." 

It  may  well  be  said  that  no  commonwealth  has  ever 
survived  the  cultivation  of  a  point  of  honor  which  is  simply 
a  surrender  of  individual  opinion,  by  one  set  of  citizens, 
on  the  demand  of  another  set  of  citizens.  It  used  to  be 
thought  that  the  main  object  of  written  constitutions  was 
to  prevent  anybody,  whether  in  or  out  of  office,  from  re- 
quiring "political  self-abnegation"  of  his  fellow-citizens 
in  the  names  of  destiny  and  of  the  decrees  of  the  Al- 
mighty. 

On  reading  language  of  this  sort  in  works  dealing  Avith 
the  foundations  of  republican  institutions,  it  is  worth  oar 
while  to  remember  that  "  great  historical  movements  like 
those  which  have  lately  convulsed  the  United  States  " 
naturally  produce  in  all  minds  some  exaltation  of  the 
imaginative  at  the  expense  of  the  reasoning  powers. 


368  THE   PLACE   OF   SOVEREIGNTY. 

Question  of  a  Rule  of  Construction. 

The  next  subject  of  iuquiiy —  viz.,  By  what  canons  will 
the  court  now  construe  or  interpret  the  actual  provisions 
of  the  Constitution  ?  —  gives  occasion  for  considerations 
which  may  seem  more  important  only  because  their  appli- 
cation is  more  immediately  practical. 

ArgfuiuG:  from  the  nature  of  courts  of  law  in  all  civilized 
countries,  it  must  be  taken  for  granted  that  the  rules  for 
the  construction  of  the  written  Constitution  heretofore 
followed  by  the  Supreme  Court  will  continue  to  be  rec- 
ognized, unless  modifications  have  become  necessary  in 
consequence  of  some  revolutionary  change. 

The  only  question,  then,  is,  Has  the  court  already  indi- 
cated a  purpose  to  construe  the  written  Constitution  as  if 
a  revolution  had  taken  place  ? 

It  was  not,  perhaps,  to  be  expected  that  the  recognition 
of  anything  like  revolution  should  be  even  suggested  in 
any  of  the  conflicting  opinions  delivered  in  the  cases  cited 
in  the  earlier  chapters.  It  is  true  that  the  main  inquiry  in 
those  cases  was,  essentially,  as  to  a  political  fact,  that 
is,  the  existence  or  non-existence,  as  members  of  the 
Union,  of  certain  States ;  and  the  conclusion  to  be  drawn 
from  the  recognition,  by  all  three  branches  of  the  Gov- 
ernment, of  the  continued  existence  of  those  States  has 
herein  been  presented  as  involving  usurpation  on  the  part 
of  that  Government,  which  may  have  been  legitimated  by 
a  revolutionary  change  in  the  possession  of  sovereign 
power.  But,  considering  the  point  of  time  at  which  tliose 
cases  arose,  it  must  be  supposed  that  the  several  members 
of  the  court  had  not  then  thought  of  any  such  ground  for 
justifying  the  action  of  the  Government,  but  exercised 
their  judicial  function  solely  in  view  of  what  they  sup- 
posed to  have  been  the  conditions  of  politicjil  existence 
before  the  war  or  before  the  era  of  reconstruction. 

The  decisions,  therefore,  which  may  possibly  indicate 
judicial  recognition  of  some  investiture   of  political  sov- 


THEORY   OF   OUR  NATIONAL   EXISTENCE.  369 

Political  Effect  of  the  Amendments. 

ereignty  as  newly  established  since  the  close  of  the  war 
must  be  sought  in  cases  of  somewhat  later  origin,  also 
involving  the  powers  of  the  general  Government. 

The  cases  which  may  naturally  be  first  thought  of  as 
belonging  to  this  class  are  those  which  have  arisen  under 
the  application  of  the  last  three  Amendments.  But,  for 
the  reasons  already  given, ^  however  wide-reaching  may 
be  the  changes  which  these  Amendments  have  made  in 
the  distribution  of  power  between  the  general  Government 
and  the  States,  they  could  not,  independently  of  possible 
questions  as  to  the  validity  of  their  adoption ,2  be.  regarded 
as  revolutionary  in  the  ordinary  sense  of  the  word. 

As  has  been  herein  already  said,  it  is  possible  to  conceive 
of  such  a  delegation  of  political  power  by  the  States  to  the 
general  Government,  by  means  of  Amendments,  as  would 
subject  the  entire  written  Constitution  to  a  new  rule  of 
construction.^  If  the  power  of  determining  the  elective 
franchise  in  each  several  State  should  be  at  any  time 
given  to  Congress,  the  political  peoples  of  the  several 
States  would  thereby  surrender  their  self-determining  indi- 
vidual existence,  and  would  cease  to  be  what  I  have  herein 
all  along  supposed  them  to  have  been  from  the  era  of  their 
declaration  of  their  independence,  —  possessors,  in  union, 
of  sovereignty  as  a  unit,  forming,  as  States  in  union,  a 
sovereign  nation.  On  the  other  hand,  the  general  Gov- 
ernment, in  acquiring  by  this  change  a  self-determining 
and  self-continuing  existence,  would  become  the  essential 
sovereign. 

It  may  be  proper  to  inquire  whether  some  recent  decis- 
ions do  not  indicate  that  the  court  proposes  hereafter  to 
construe  the  Constitution  with  the  new  Amendments  as  if 
this  change  had  already  taken  place,  or  were  at  least  begun 
and  now  in  progress,  and  in  taking  this  course,  proposes  to 

1  A7Ue,  p.  363.  2  Ante,  p.  283.  3  Ante,  p.  363. 


THE   PLACE   OF   SOVEREIGNTY. 


Three  Classes  of  Cases. 


rely  either  on  the  indications  of  these  Amendments  or  on 
those  of  some  recent  pohtical  events.^ 

The  cases  which  are  here  noticed  in  such  inquiry  are 
such  as  presented,  — 

1,  A  question  arising  immediately  under  one  of  these 
Amendments,  or  — 

2,  A  question  under  some  legislation  of  Congress  founded 
on  such  an  Amendment,  or  — 

3,  A  question  of  power  or  jurisdiction  not  directly 
dependent  upon  any  of  these  Amendments. 

The  earliest  cases  of  the  first  class  are  the  so-called 
Slaughter  House  Cases,  16  Wall.  36,  where  the  question 
was  of  the  power  of  the  court,  under  the  Fourteenth 
Amendment,  as  law,  to  control  the  action  of  the  State  in 
the  matter  of  sanitary  police.^  Mr.  Justice  Miller,  deliver- 
ing the  opinion  of  the  majority,  which  was  against  giving 
such  a  construction  to  the  Article,  said  {ib.  82)  : — 

"  The  adoption  of  the  first  eleven  amendments  to  the  Constitu- 
tion, so  soon  after  the  original  instrument  was  accepted,  shows  a 
prevailing  sense   of  danger  at  that   time  from  the  Federal  power. 

^  Hereafter,  it  may  perhaps  be  necessary  for  writers  on  constitutional 
law  to  distinguish  and  class  the  decisions  of  the  court,  on  some  topics,  as 
they  may  have  been  rendered  either  before  or  after  the  war  and  the  era  of 
reconstruction.  If  this  should  be  the  case,  the  term  "reconstruction  "  must 
be  taken  in  a  wider  sense  than  that  in  which  it  has  been  applicable  to  the 
eleven  States  of  the  Confederacy  only.  It  should  indicate  a  reorganization 
of  the  whole  political  dominion  previously  known  to  the  world  as  the 
United  States,  being,  in  effect,  equivalent  to  a  revolution. 

2  Munn  V.  Illinois,  4  Otto,  113,  is  a  case  very  similar  to  this  in  its  con- 
nection with  the  Fourteenth  Amendment.  Waite,  Ch.  J.,  delivered  the 
opinion  of  the  court.  Field,  J.,  delivered  a  dissenting  opinion,  in  which 
Strong,  J.,  concurred. 

In  Minor  v.  Ilappersett,  21  Wall.  162,  arising  on  a  claim  of  Mrs.  Virginia 
Minor,  a  citizen  of  Missouri,  to  be  registered  as  a  voter,  —  H<ld,  that  the 
right  of  suffrage  was  not  necessarily  one  of  the  privileges  or  inununities  of 
citizens  before  the  adoption  of  the  Fourteenth  Amendment,  and  that  it  does 
not  add  to  these  privileges  and  immunities.  It  simply  furnishes  additional 
guaranty  for  tlie  protection  of  such  as  the  citizen  already  had.  The  right 
to  vote  is  derived  from  the  political  authority  of  the  State. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  371 

Tlie  Slaughter  House  Cases. 

And  it  caunot  be  denied  that  such  a  jealousy  continued  to  exist 
with  many  patriotic  men  until  the  breaking  out  of  the  late  civil 
war.  It  was  then  discovered  that  the  true  danger  to  the  perpetuity 
of  the  Union  was  in  the  capacity  of  the  State  organizations  to 
combine  and  concentrate  all  the  powers  of  the  States  and  of  the 
contiguous  States  for  a  determined  resistance  to  the  general  Gov- 
ernment. 

"  Unquestionably,  this  has  given  great  force  to  the  argument  and 
added  largely  to  the  number  of  those  who  believe  in  the  necessity 
of  a  strong  National  government.  But,  however  pervading  this 
sentiment,  and  however  it  may  have  contributed  to  the  adoption  of 
the  Amendments  we  have  been  considering,  we  do  not  see  in  those 
Amendments  any  purpose  to  destroy  the  main  features  of  the  gen- 
eral system." 

As  far  as  I  am  aware,  no  member  of  the  Supreme  Court 
has  taken  these  Amendments  as  indicating  "  a  purpose  to 
destroy  the  main  features  of  the  general  system,"  or  as 
being  revolutionary  in  that  sense,  or  in  any  degree  more 
so  than  any  other  Amendments  might  be.^  But  whether  a 
jurist  sees  such  "  purpose,"  in  any  Amendments  whatever, 
must  depend  very  much  upon  the  idea  he  had  adopted 
beforehand  of  "  the  main  features  of  the  general  system." 

A  "  purpose "  implies  the  pre-existence  of  somebody 
who  may  have  entertained  it,  and  whose  powers  are  such 
that  his  purposes  are  material.  It  is  pertinent  in  a  politi- 
cal inquiry  to  ask,  Who  is  it  that  the  court  recognizes  as 
having  had  the  power  and  the  purpose,  whatever  it  may 
have  been,  which  is  to  be  sought  in  these  or  in  any 
Amendments  ? 

It  might  have  given  some  political  significance  to  these 
historical  statements  if  the  court  had  indicated  who  it  is 

1  Some  justices,  however,  have  thought  that,  in  supporting  certain  powers 
claimed  ftnder  the  new  Amendments,  tlie  majority  had  given  them  a  revo- 
hitionary  construction.  Tliis  appears  from  tlieir  dissenting  from  that  con- 
struction on  the  ground  that  these  Amendments  are  not  in  the  nature  of 
revolution.  Compare  the  dissenting  opinions  by  Field  and  Clifford,  JJ., 
in  ex  parte  Virginia,  10  Otto,  361,  363,  370.    Post,  p.  382. 


372  THE   PLACE   OF   SOVEREIGNTY.      , 

Cases  of  the  First  Class. 

that  wills  that  there  should  be  any  union  at  all,  or  desires 
its  "  perpetuity,"  or  even  its  present  continuance,  and  who 
it  was  that  "  discovered  "  the  danger,  and  who  must  be 
trusted  to  take  measures  to  avert  it. 

It  would  have  increased  the  interest  of  students  of 
public  law  in  such  judicial  attempts  at  writing  American 
history,  if  the  members  of  the  court  which  gave  its  high 
sanction  to  these  expressions  had,  on  this  or  on  some  other 
occasion,  explained  how,  this  "general  Government"  or 
this  "  Union  "  could  come  into  existence,  or  continue  to 
exist,  otherwise  than  by  "  the  capacity  of  the  State  organi- 
zations to  combine  and  concentrate  all  the  powers  of  the 
State  and  the  contiguous  States "  for  any  purpose  they 
might  think  proper,  or  how,  when  the  States  may  cease  to 
exercise  this  capacity  for  these  ends,  this  Government 
proposes  to  maintain  its  existence  or  "  the  perpetuity  of 
the  Union." 

If  the  court  meant  that  tliis  "  capacity  of  the  State 
organizations  "  was  exhibited  in  the  attempted  secession  of 
eleven  States,  it  may  be  asked.  How  has  the  "  danger  " 
then  "  seen  "  been  diminished  by  these  Amendments  ? 
They  do  not  make  secession  any  more  illegal  or  null  than 
it  was  before.  Nothing  that  has  been  said  or  done  since 
1861  has  made  the  duty  of  the  citizen  of  a  seceding  State 
one  particle  more  clear,  under  any  tlieory  of  our  national 
existence  which  the  Supreme  Court  may  have  advanced. 
The  Amendments  do  not  indicate  anything  of  the  sort ; 
and  in  the  opinion  of  the  majority,  their  sole  object  or  pur- 
pose was  to  carry  out  the  policy  of  the  emancipation  of 
persons  of  negro  race  by  the  power  assumed  by  the  gen- 
eral Government  during  the  war. 

On  this  point  it  is  said  in  the  opinion  (ib.  67)  :  — 

"  The  most  cursory  glance  at  these  articles  discloses  a  unity  of 
purjiose,  when  taken  in  connection  with  the  history  of  the  times, 
which  cannot  fail  to  have  au  important  bearing  on  any  question  of 


THEOBY   OF   OUR   NATIONAL  EXISTENCE.  873 

The  Slaughter  House  Cases. 

doubt  as  to  their  true  meaning.  Nor  can  such  doubts,  when  any 
reasonably  exist,  be  safely  and  rationally  solved  without  reference 
to  that  history ;  for  in  it  is  found  the  occasion  and  the  necessity  for 
recurring  again  to  the  great  source  of  power  in  this  country,  —  the 
people  of  the  States,  —  for  additional  guarantees  of  human  rights  ; 
additional  power  to  the  Federal  Government;  additional  restraints 
upon  those  of  the  States," 

In  their  political  bearing,  these  remarks  suggest  the 
questions,  Who  was  it  that,  perceiving  the  necessity 
referred  to,  recurred  to  the  great  source  of  power  in  this 
country?  and  Who  are  "the  people  of  the  States"  who 
put  restraints  upon  the  power  of  the  States,  if  not  the 
States  themselves  ?  ^ 

But  one  may  search  in  vain  the  records  of  the  Supreme 
Court  for  answers  to  these  questions.  Although  these 
Amendments  were  adopted  but  yesterday,  by  the  action  of 
three  fourths  of  the  States,  the  court  here  speaks  of  them 
as  if  they  too,  like  the  original  Constitution,  were  of  some 
supernatural  origin  —  a  manifestation  of  uncreated  essence 
—  now  existent  by  their  own  intrinsic  force,  without  the  will 
of  the  States  which  were  said  to  have  ''  adopted"  them. 

Mr.  Justice  Bradley,  in  his  dissenting  opinion,  made  a 
somewhat  different  reference  to  recent  history,  as  giving  the 
true  index  to  the  construction  of  this  Amendment.  His 
statement  is  (ib.  123)  :  — 

"  The  mischief  to  be  remedied  was  not  merely  slavery  and  its 
incidents  and  consequences ;  but  that  spirit  of  insubordination  and 
disloyalty  to  the  National  government  which  had  troubled  the  coun- 
try for  so  many  years  in  some  of  the  States,  and  that  intolerance 
of  free  speech  and  free  discussion  which  often  rendered  life  and 
property   insecure,  and   led   to   much   unequal    legislation.       The 

1  In  the  words,  "  people  of  the  Slates,"  tliere  may  be  some  intimation  of  a 
political  superior  who  is  not  the  nation  as  a  mass.  In  Judge  Swayne's  dis- 
senting opinion,  "  the  public  mind  "  appears  as  the  source  of  the  Amend- 
ments (ib.  p.  128).  In  Judge  Bradley's*,  it  is  "  the  national  yearning  "  which 
"  had  a  voice  given  "  to  it  in  the  Amendment  (ib.  p.  123). 


374  THE   PLACE   OF    SOVEREIGNTY. 

Bradley  and  Swayne,  JJ.,  dissenting. 

ameudmeut  was  au  attemijt  to  give  a  voice  to  the  strong  National 
yearning  for  that  time  and  that  condition  of  things  in  which  Ameri- 
can citizenship  should  be  a  sure  guaranty  of  safety,  and  in  which 
every  citizen  of  the  United  States  might  stand  erect  on  every  por- 
tion of  its  soil/  in  the  full  enjoyment  of  every  right  and  privilege 
belonging  to  the  freeman,  without  fear  of  violence  or  molestation." 

On  p.  124  Mr.  Justice  Bradley  remarks  :  — 

"  The  great  question  is,  What  is  the  true  construction  of  the 
amendment  ?  AVhen  once  we  find  that,  we  shall  find  the  means  of 
giving  it  effect.  The  argument  from  inconvenience  ought  not  to 
have  a  very  controlling  influence  in  a  question  of  this  sort.  The 
National  will  and  the  National  interest  are  of  far  greater  im- 
portance." 

On  reading  such  historical  statements  the  inquiries  oc- 
cur, Who  is  this  not-come-at-able  somebody  who  is  to 
remedy  the  mischief  alluded  to,  or  any  other  one  ?  Who 
is  it  that  decides  that  what  Judge  Bradley  calls  "  the 
spirit  of  insubordination,"  etc.,  was  a  mischief  at  all,  or 
who  wills  that  there  should  be  either  free  speech  or  any- 
thing else  ?  and  who  is  the  person  that  can  give  or  deny 
a  voice  to,  or  even  feel,  the  "  national  yearning  "  spoken 
of?  What  right  has  a  judge  to  know  a  national  will  and 
a  national  interest  which  has  not  been  made  known  through 
the  States  in  union  ?  In  other  words,  who  is  the  sover- 
eign, if  not  the  States  which,  as  States  in  union,  have 
given  or  withheld  assent  to  these  Amendments,  as  well  as 
to  the  original  Constitution  ? 

In  the  same  imaginative  vein,  Mr.  Justice  Swayne  said 
in  this  ease  (ib.  128)  :  — 

"  These  amendments  are  all  consequences  of  the  late  civil  war. 
The  prejudices  and  ai^prehension  as  to  the  central  government 
which  prevailed  when  the  Constitution  was  adopted  were  dis- 
pelled by  the  light  of  experience.     The  public  mind  became  satis- 

1  Is  the  singular  pronoun  used  to  indicate  tliat  tlie  soil  is  the  soil  of  a 
unitary  political  body  ? 


THEORY   OF   OUR    NATIONAL  EXISTENCE.  875 

The  Slaughter  House  Cases. 

fied  that  there  was  less  danger  of  tyranny  in   the  head  than   of 
anarchy  and  tyranny  in  the  members." 

In  accordance  with  this  metaphorical  language,  it  must 
be  sujDposed  that  it  is  this  intellectual  "head"  which 
alone  is  cognizant  of  a  "  public  mind,"  and  that  the  States, 
being  "members"  to  be  directed  by  this  "head,"  have  no 
"mind  "  in  the  matter  of  a  public  mind.^ 

But  this  expression  of  this  dissenting  Justice  is  quite  in 
harmony  with  other  parts  of  his  several  opinion,  in  which 
he  proposed  to  construe  this  Amendment  simply  by  his 
own  individual  views  of  what  the  distribution  of  power 
under  a  Constitution  ought  to  be  ;  while,  on  the  same 
page  he  remarks,  "  Our  duty  is  to  execute  the  law,  not  to 
make  it."    Mr.  Justice  Swayne  said  (ib.  129)  :  — 

"  The  i^ower  is  beneficent  in  its  nature  and  cannot  be  abused.  It 
is  such  as  should  exist  in  every  well-ordered  system  of  polity. 
Where  could  it  be  more  appropriately  than  in  the  hands  to  which 
it  is  confided?  It  is  necessary  to  enable  the  government  of  the 
nation  to  secure  to  every  one  within  its  jurisdiction  the  rights  and 
privileges  enumerated,  which,  according  to  the  plainest  consid- 
erations of  reason  and  justice,  and  the  fundamental  principles  of 
the  social  compact,  all  are  entitled  to  enjoy.  Without  such 
authority,  any  government  claiming  to  be  national  is  glaringly 
defective." 

May  it  be  proper  to  suggest  that  this  argument  has  a 
strong  resemblance  to  reasoning  in  a  circle  ?  Tlie  matter 
in  issue  is,  how  far  the  individual  rights  of  natural  per- 
sons are  entrusted  to  a  certain  government.  If  it  be 
proper  to  call  a  government  "  national "  only  in  the  case 
that  these  rights  have  been  entrusted  to  it,  the  claim  to 
be    "  national "   depends  on  the  answer  to   the   question 

1  In  Mr.  Justice  Strong's  opinion  in  Tennessee  v.  Davis,  10  Otto,  2G3, 
the  States  are  presented  as  "  members  "  of  the  general  Government,  —  "  the 
operations  of  the  general  Government  may  at  any  time  be  arrested  at  the 
will  of  one  of  its  members." 


376  THE  PLACE   OF   SOVEREIGNTY. 

The  Slaughter  House  Cases. 

whether  they  have  been  so  entrusted  to  it.  The  question 
cannot  be  decided  by  assuming  the  propriety  of  the  name. 

In  these  dissenting  opinions,  as  also  in  the  opinion  of 
the  court,  it  seems  to  be  assumed  that  the  rights  referred 
to  must  necessarily  be  better  protected  if  confided  to  one 
general  government  than  they  would  be  if  entrusted  to 
the  States.^  This  is  mere  assumption.  But,  if  correct,  it 
should  have  no  weight  in  a  court  of  law ;  unless,  indeed, 
the  Supreme  Court  in  the  future  is  to  determine,  by  the 
justices'  private  theories  of  political  good  and  evil,  the 
distribution  of  all  political  power,  in  which  case  a  written 
constitution  is  quite  superfluous.^ 

The  opinion  and  decision  of  the  court  in  these  cases 
were  sustained  by  five  Justices  against  a  minority  of  four, 
including  Chief  Justice  Chase,  who,  however,  did  not  de- 
liver a  separate  opinion.  Some  passages  in  the  dissenting 
opinions  might  be  noticed  as  representing  the  basis  of 
individual  rights  in  this  country  as  having  been  always 
derived  from  a  law  of  general  or  national  extent,  and  not 
from  the  local  law  of  a  colony  or  vState  (compare  Field,  J., 
16  Wall.  104, 105  ;  Bradley,  J.,  ib.  112-120),—  a  view  which 
it  is,  at  least,  difficult  to  sustain  by  history.  Mr.  Justice 
Swayne's  opinion  rests  rather  on  the  idea  of  a  transfer, 
indicated  in  this  Amendment,  of  all  individual  rights  to  a 
"  national  "  law,  that  is,  a  law  to  be  maintained  by  a  "  Na- 
tional "  government.^ 

1  Ante,  p.  370.  This  is  in  accordance  with  ideas  now  prevalent,  which 
are  founded  on  recollections  of  the  later  history  of  slavery  on  this  continent. 
It  seems  to  be  forgotten  that,  liad  tlie  power  over  personal  status  been  u;iven 
to  a  general  government  at  the  formation  of  the  Union,  tlie  abolition  of  slav- 
ery could  not  have  taken  place,  as  it  did,  by  the  sejjarate  action  of  one 
State  after  another  until  the  free  States  became  the  majority.  Had  the 
power  been  otherwise  located,  a  secession  war  might  have  originated  in  a 
quarter  and  from  a  motive  quite  opposite  to  those  which  were  held  respon- 
sible for  the  late  civil  war. 

^  Compare  antp.,  p.  .352. 

3  In  the  dissenting  opinions  the  term  "  National,"  in  the  opinion  of  the 
court  the  term  "federal,"  is  employed. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  377 

Cases  of  the  second  Class. 

I  have  noticed  more  particularly  the  opinions  of  the  dis- 
senting Justices  in  this  case,  as  indicating  their  construction 
of  the  Constitution  under  a  political  theory,  on  account  of 
the  share  which  the  same  judges  had  in  later  cases,  herein- 
after to  be  noticed. 

Among  the  cases  of  the  second  class  as  above  distin- 
guished, that  is,  the  cases  arising  under  the  legislation  of 
Congress  based  upon  powers  given  by  the  new  Amend- 
ments, the  cases  United  States  v.  Reese,  2  Otto,  214,  and 
United  States  v.  Cruikshank,  ih.^  543,  are  of  some  interest, 
although  the  constitutionality  of  the  Act  of  Congress  on 
which  they  were  founded  was  not  involved  in  the  judg- 
ments. 

The  first  of  these  cases  arose  on  an  indictment  in  the 
United  States  Courts,  under  Sections  3  and  4  of  the  so- 
called  Enforcement  Act,^  against  certain  State  inspectors 
of  a  municipal  election  in  Kentucky  for  refusing  to  receive 
the  vote  of  a  colored  citizen,  under  a  dispute  as  to  his 
payment  of  tax  ;  that  being  a  condition  precedent  required 
of  all  voters  under  the  State  law. 

The  second  case  arose  under  Sec.  6  of  the  same  Act,  on 
indictment  in  the  United  States  Court  for  conspiracy  in 
the  State  of  Louisiana,  in  intimidating  two  persons,  citi- 
zens of  the  United  States,  "  of  African  descent,  and  per- 
sons of  color,"  and  preventing  them  from  the  enjoyment 
of  certain  rights.^ 

1  Act  of  May  31, 1870,  16  U.  S.  Stat.  140,  "  An  Act  to  enforce  tlie  Eights 
of  Citizens  of  the  United  States." 

2  Chief  Justice  Waite,  delivering  the  opinion  of  the  court  in  this  case  (2 
Otto,  550),  when  referring  to  the  preamble  of  the  Constitution,  spoke  of  "  the 
people  of  the  United  States  "  as  having  "  ordained  and  established  the  gov- 
ernment of  the  United  States,  and  defined  its  powers  by  a  constitution." 
The  record  referred  to  declares  that  it  was  the  Constitution  which  was 
so  ordained  and  established.  The  term  "  the  government  of  the  United 
States  "  is  used  only  in  Art.  I.  sect.  8,  p.  18,  —  "  powers  vested  by  this  Con- 
stitution in  the,"  etc.  The  variation  is  significant  as  indicating  the  ap- 
proaches to  that  theory  which  makes  the  written  Constitution  the  law  of 


378  THE   PLACE   OF   SOVEREIGNTY. 

Tlie  Virginia  Cases. 

Id  each  of  these  cases  the  iudictments,  as  framed,  were 
held  not  sustainable  under  the  Act  of  Congress. 

Of  greater  importance  among  the  cases  of  this  class  are 
the  so-called  West  Virginia  and  Virginia  cases.^ 

Strauder  v.  West  Virginia,  10  Otto,  303,  arose  under 
Sec.  641  of  the  Revised  Statutes  ^  of  the  United  States, 
providing  for  the  removal  of  cases  from  the  State  courts  to 
the  courts  of  the  United  States,  under  certain  circum- 
stances. The  court  speaks  of  it  as  "  an  advanced  step, 
fully  warranted,  we  think,  hy  the  fifth  section  of  the  Four- 
teenth Amendment."  The  plaintiff  in  error,  a  colored 
man,  had  been  indicted  for  murder,  tried,  convicted,  and 
sentenced  in  the  State  court.  The  ground  of  removal  was 
that  "  by  virtue  of  the  laws  of  West  Virginia,  no  colored 
man  was  eligible  to  be  a  member  of  the  grand  jury  or  to 

a  sovereign  government  (comp.  ante,  pp.  342,  34.3),  as  distinguislied  from  a 
law  of  a  distinct  sovereign  of  which  that  government  is  a  subordinate  instru- 
ment. It  is  in  accordance  with  tliis  that  the  judge  says,  "  Tlie  government, 
thus  established  and  defined,  is  to  some  extent  a  government  of  tlie  States 
in  their  political  capacity.  It  is  also,  for  certain  purposes,  a  government 
of  the  people,"  meaning,  apparently,  by  "  of,"  —  ocer  States  and  orer 
people.  The  judge  also  speaks  of  "rights  granted  to  the  people  by  the 
Constitution,"  without  distinguishing  the  people  grantors  from  the  people 
grantees.  The  Chief  Justice  in  the  same  place  indicates  his  acceptance  of 
the  divisibility  of  sovereignty,  —  "a  citizenship  which  owes  allegiance  to 
two  sovereignties,  and  claims  protection  from  both."  Adding,  "  The  citizen 
cannot  complain,  because  he  has  voluntarily  submitted  himself  to  such  a 
form  of  government."  This  recalls  some  of  the  propositions  in  Chisholm  v. 
Georgia,  and  shows  that  the  doctrine  of  a  social  compact  still  has  vitality. 

1  Decided,  October  Term,  1879.  The  majority  opinions  in  these  cases 
may  be  found  in  Macpherson's  Handbook  of  Politics  for  1880. 

2  Which  declares  that  "  when  any  civil  suit  or  criminal  prosecution  is 
commenced  in  an)'  State  court,  for  any  cause  whatsoever,  against  any  per- 
son who  is  denied  or  cannot  enforce,  in  the  judicial  tribunals  of  the  State,  or 
in  the  part  of  the  State  where  such  prosecution  is  pending,  any  right 
secured  to  him  by  any  law  providing  for  the  equal  civil  rights  of  citizens  of 
the  United  States,  or  of  all  persons  within  the  jurisdiction  of  the  United 
States,  .  . .  such  suitor  prosecution  may,  upon  the  petition  of  such  defendant, 
filed  in  said  State  court  at  any  time  before  the  trial  or  final  hearing  of  the 
cause,  stating  the  facts,  and  verified  l)y  oath,  be  removed  before  trial  into 
the  next  circuit  court,  to  be  held  in  the  district  where  it  is  pending." 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  379 

The  Virginia  Cases. 

serve  in  a  petit  jury  in  the  State."  The  Supreme  Court 
held  that  the  plaintiff's  rights,  under  the  Fourteenth 
Amendment,  and  under- the  statutes  of  the  United  States 
enacted  to  sustain  that  Amendment,^  had  been  infringed, 
and  reversed  the  judgments  of  the  State  courts.  The  opin- 
ion of  the  court  was  delivered  by  Mr.  Justice  Strong. 
Justices  Clifford  and  Field  dissented. 

Virginia  v.  Rives,  10  Otto,  314,  was  also  a  case  under 
Sec.  641  of  the  Revised  Statutes,  on  the  petition  of  the 
State  for  a  writ  of  mandamus  against  Judge  Rives,  of  the 
United  States  Circuit  Court,  to  restore  to  the  custody  of 
the  State  court  two  colored  men,  who  were  under  in- 
dictment for  murder,  and  who  were  then  held  on  habeas 
corpus  from  the  Circuit  Court.  That  writ  had  been  granted 
on  their  petition,  showing  that  the  State  court  had  over- 
ruled their  first  motion,  —  "  that  the  ve7iire,  which  was 
composed  entirely  of  the  white  race,  be  modified  so  as  to 
allow  one  third  thereof  to  be  composed  of  colored  men," 
and  that  their  application  to  the  court  and  the  prosecut- 
ing officers  —  that  "a  portion  of  the  jury  by  which  they 
were  to  be  tried  should  be  composed  in  part  of  com- 
petent jurors  of  their  own  race  and  color"  —  had  been 
refused  them. 

The  Supreme  Court  granted  the  mandamus,  on  the 
ground  that  the  refusal  of  a  mixed  jury  did  not  "  amount 
to  any  denial  of  a  right  secured  to  them  by  any  law  pro- 
viding for  the  equal  rights  of  citizens  of  the  United 
States."     (i5.  322.) 

In  the  opinion  of  the  court,  by  Mr.  Justice  Strong,  it  is, 
however,  said :  — 

"  It  is  a  right  to  which  every  colored  man  is  entitled,  that,  in  the 
selection  of  jurors  to  pass  upon  his  life,  liberty,  or  property,  there 

1  Sections  1977,  1978,  of  Rev.  Stat. 


880  THE   PLACE   OF   SOVEREIGNTY. 

Ex  parte  Virginia. 

shall   be  no   exclusion  of  his   race,  and  no   discrimination  against 
them  because  of  their  color."     {lb.  322.) 

It  appears  from  the  report  that,  in  Virginia,  there  was 
no  statutory  limitation  to  white  persons,  of  those  liable 
to  serve  as  jurors. 

Justices  Clifford  and  Field  concurred  in  the  judgment, 
but  expressed  in  separate  opinions  the  ground  of  their 
concurrence,  as  they  did  not  agree  with  all  the  views  ex- 
pressed in  the  opinion  of  the  court. 

The  distinction  taken  in  this  case  is  further  indicated  in 
the  decision. of  Ex  i^arte  Virginia,  10  Otto,  339,  a  case 
arising  under  the  Act  of  Congress  commonly  called  the 
Civil  Rights  Bill,i  in  the  constitutionality  of  which  the 
whole  merits  of  the  case  were,  in  the  opinion  of  the  court, 
involved.     (J5.  348.) 

In  the  Supreme  Court  the  decision  was  on  the  petition 
for  a  habeas  corpus,  and  for  the  discharge  of  J.  D.  Coles, 
who  was  in  custody  under  an  indictment  in  the  District 
Court  of  the  United  States,  charged  with  having  violated 
the  provisions  of  the  statute,  by  not  having  placed  on  the 
jury  lists  for  the  State  and  county  courts  any  other  tlian 
white  persons,  when  acting  as  judge  of  the  State  county 
court. 

The  Supreme  Court  sustained  the  indictment  as  a  proper 
one  in  form,  or  on  its  face,  under  the  provisions  of  the 
statute,  and  affirmed  the  power  of  Congress  to  enact  such 
a   law  under   the   clauses   of  the    Fourteenth  Article  of 

1  An  Act  to  protect  all  citizens  in  tlieir  civil  and  legal  rights,  18  U.  S. 
Stat.,  parts,  330.  Passed,  INIarch  1,  1875.  Tlie  indictment  in  this  case  was 
under  Sec.  4,  enacting  that  "  no  citizen,  possessing  all  other  qualifications 
which  are  or  may  be  prescribed  by  law,  shall  be  disqualified  for  service  as 
grand  or  petit  juror  in  any  court  of  the  United  States  or  of  any  State,  on  ac- 
count of  race,  color,  or  previous  condition  of  servitude ;  and  any  ofllcer  or 
other  person,  charged  with  any  duty  in  the  selection  or  summoning  of  jurors, 
who  slialk'xchideor  fail  to  summon  any  citizen  for  the  cause  aforesaid,  sliall, 
on  conviction  tiiereof,  be  deemed  guilty  of  a  misdemeanor,  and  be  fined  not 
more  than  five  thousand  dollars." 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  381 

The  Virginia  Cases. 

Amendments/  and  refused  the  petition  for  habeas  corpus. 
Justices  Clifford  and  Field,  in  an  opinion  delivered  by 
the  last,  dissented  {ih.  353),  holding  that  the  indictment 
was  void  on  its  face,  and  that  the  Act  of  Congress  was  not 
warranted  by  the  Amendment.^ 

In  these  cases,  the  powers  exerted  by  the  legislature  of 
the  general  Government  were  claimed  solely  on  the  grant 
of  power  made  in  the  new  Amendments.  As  already  ob- 
served, no  such  grant  of  power  can  in  itself  be  called 
revolutionary  or  an  infringement  of  the  political  rights  of 
the  States.  It  was  said  by  Mr.  Justice  Strong,  in  Ex  parte 
Virginia,  10  Otto,  346  :  — 

"  Nor  does  it  make  any  difference  that  such  legislation  is  restric- 
tive of  what  the  State  might  have  done  before  the  constitutional 
amendment  was  adopted.  The  prohibitions  of  the  Fovirteenth 
Amendment  are  directed  to  the  States,  and  they  are,  to  a  degree, 
restrictions  of  State  power.  It  is  these  which  Congress  is  em- 
powered to  enforce,  and  to  enforce  against  State  action,  however  put 
forth,  whether  that  action  be  executive,  legislative,  or  judicial. 
Such  enforcement  is  no  invasion  of  State  sovereignty.  No  law 
can  be  which  the  people  of  the  States  have  by  the  Constitution  of 
the  United  States  empowered  Congress  to  enact.  .  .  .  Every  ad- 
dition of  power  to  the  general  government  involves  a  corresponding 
diminution  of  the  governmental  powers  of  the  States."  ^ 

1  Article  XIV.  §  1.  "All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States,  and  of  the  State  in  which  they  reside.  No  State  shall  make  or  en- 
force any  law  which  shall  abridge  the  privileges  or  immunities  of  citizens  of 
the  United  States;  nor  shall  any  State  deprive  any  person  of  life,  liberty, 
and  property,  without  due  process  of  law,  nor  deny  to  any  person  the  equal 
protection  of  the  laws." 

§  5.  "  The  Congress  shall  have  power  to  enforce,  by  appropriate  legisla- 
tion, the  provisions  of  this  article." 

2  The  same  opinion  is  given  by  these  Justices  as  the  ground  for  their  dis- 
sent in  Strauder  v.  West  Virginia. 

^  Of  interest  in  connection  with  the  American  political  notions  about  "  ab- 
stractions" {ante,  p.  291),  is  Judge  Strong's  expression,  "  the  abstract  thing 
denominated  a  State"  {ib.  347),  when  speaking  of  a  State  of  the  United 
States.     Compare  also  ante,  319,  note. 


382  THE   PLACE   OF   SOVEREIGNTY. 

Ex  parte  Virginia. 

It  is  from  the  same  point  of  view  that  I  here  notice  the 
opinions  of  the  dissenting  justices,  Field  and  Chfford,  in 
Ex  parte  Virginia.  In  the  opinion  written  bj  Mr.  Justice 
Field  (10  Otto,  358),  he  observes  :  — 

"  Nothing,  in  my  judgment,  could  have  a  greater  tendency  to 
destroy  the  independence  and  autonomy  of  the  States,  reduce  them 
to  a  humiliating  and  degrading  dependence  upon  the  central  gov- 
ernment, engender  constant  irritation,  and  destroy  that  domestic 
tranquillity  which  it  was  one  of  the  objects  of  the  Constitution  to 
insure,  —  than  the  doctrine  asserted  in  this  case,  that  Congress 
can  exercise  coercive  authority  over  judicial  officers  of  the  States 
in  the  discharge  of  their  duties  under  State  laws.  It  will  be  only 
another  step  in  the  same  direction  towards  consolidation,  when  it 
assumes  to  exercise  similar  coercive  authority  over  governors  and 
legislators  of  States." 

In  the  same  opinion  (ib.  361)  it  is  said  of  the  new 
Amendments  :  — 

"  Aside  from  the  extinction  of  slavery  and  the  declaration  of 
citizenship,  their  provisions  are  merely  prohibitory  upon  the  States, 
and  there  is  nothing  in  their  language  or  purpose  which  indicates 
that  they  are  to  be  construed  or  enforced  in  any  way  different  from 
that  adopted  with  reference  to  previous  restraints  upon  the  States. 
The  provision  authorizing  Congress  to  enforce  them  by  appropriate 
legislation  does  not  enlarge  their  scope,  nor  confer  any  authority 
which  would  not  have  existed  independently  of  it.  No  legislation 
would  be  appropriate  which  should  contravene  the  express  prohibi- 
tions upon  Congress  previously  existing,  as  for  instance,  that  it 
should  not  pass  a  bill  of  attainder,  or  an  ex  post  facto  law ;  nor 
would  legislation  be  appropriate  which  should  conflict  with  the  im- 
plied prohibitions  upon  Congress.  They  are  as  obligatory  as  the 
express  prohibitions.  The  Constitution,  as  already  stated,  contem- 
plates the  existence  and  independence  of  the  States  in  all  their  re- 
served powers.  If  the  States  were  destroyed,  there  could,  of  course 
be  no  United  States.  In  the  language  of  this  court,  in  Collector  v. 
Day,  '  without  them  the  general  government  itself  would  disappear 
from  the  family  of  nations.'  "  ^ 

1  Collector  v.  Day,  11  Wall.  120.  In  this  case  it  was  lielJ  that  the  salary 
of  a  judge  of  a  State  Probate  Court  could  not  be  subject  to  the  United  States 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  383 

The  Political  Question  here  raised. 

In  the  political  relation  in  which  all  decisions  and  opin- 
ions of  the  Supreme  Court  are  herein  considered,  the 
question  is  not  whether  these  judgments  are  authorized  by 
the  letter  of  any  one  of  the  new  Amendments  ;  it  is  whether 
the  construction,  given  to  them  generally,  as  grants  of 
power  to  Congress,  by  the  majority  of  the  court,  does  or 
does  not  involve  the  recognition  of  a  new  investiture  of  sov- 
ereign power  in  this  country,  or  the  ascription  of  the  writ- 
ten Constitution  and  all  Amendments  to  a  sovereign  source 
of  law  different  from  that  from  which  the  Constitution  and 
Amendments  had  proceeded  before  the  war,  whatever  that 
source  may  have  been. 

In  the  Slaughter  House  Cases,  the  court  intimates  that 
the  source  of  all  such  grants  of  power  had  always  been 
the  same,  designating  as  such  source  "  the  people  of  the 
States."  But  in  what  sense  these  words  are  to  be  under- 
stood is  as  indeterminate  in  this  instance  as  it  had  been 
in  all  instances  of  their  use  by  the  court's  predecessors.^ 

As  coming  from  a  dissenting  member  of  the  court, 
the  sentences  last  cited  are  more  specially  noticeable,  in  the 
political  point  of  view,  for  the  manner  in  which  they  pre- 
sent the  written  Constitution  as  the  ultimate  political  fact 
upon  which  the  existence  of  the  States,  as  well  as  that  of  the 
general  Government,  depends.  What  Judge  Field  refers 
to  as  "  prohibitions,"  "  inyDlied  "  in  the  Constitution,  were 

income  tax.  This  has  often  since  been  cited  in  the  Supreme  Court  for  its 
recognition  of  the  sovereign  nature  of  the  powers  held  by  the  States.  In 
another  point  of  view  it  may  be  taken  as  a  contribution  to  the  false  political 
theory  of  divisibility  of  sovereignty,  with  the  idea  that  the  powers  exer- 
cised by  the  general  Government  are  not  powers  belonging  to  the  States 
themselves,  in  their  union ;  because  now  vested  in  a  distinct  political  person- 
ality, called  "  the  United  States,"  but  who,  as  far  as  the  States  are  con- 
cerned, is  in  the  position  of  a  foreign  or  alien  sovereignty.  Mr.  Justice 
Bradley  delivered  a  brief  dissenting  opinion,  founded  on  a  view  of  our 
public  law,  which,  in  its  application  to  this  particular  case,  may  be  accepted, 
without  recognizing  the  extension  given  to  it  by  the  same  judge  in  somu 
opinions  to  be  cited  on  a  later  page. 
1  Ante,  pp.  108-115,  312. 


384  THE   PLACE   OF    SOVEREIGNTY. 

Field,  J.,  in  the  Virginia  Cases. 

reall}^  the  political  facts  on  which  the  Constitution  rested 
for  its  authority  as  law ;  that  is,  the  existence  and  inde- 
pendence of  the  States  as  possessors,  in  union,  not  only  of 
"  their  reserved  powers,"  but  also  of  those  powers  which 
they  had  delegated  to  a  common  instrument,  the  so- 
called  "  government  of  the  United  States,"  existing  under 
the  law  which  they,  in  union,  ordained  and  sustained.  It 
had  been  these  States  which,  in  their  union,  were  a  member 
of  the  "  family  of  nations,"  as  they  were  before  they  con- 
stituted this  general  Government,  which,  of  itself,  is  not 
now  known  in  that  family,  and  which  had  not  been,  as 
often  miscalled,  —  the  United  States.^ 

In  this  fallacious  reference  to  the  nature  of  the  Consti- 
tution, these  sentences  of  the  dissenting  opinion  are  in 
accord  with  the  general  theory,  supported  by  the  majority 
of  the  court,  of  the  subordination  of  the  States  to  the  cen- 
tral or  general  Government,  claiming  to  be  the  sovereign, 
—  the  United  States. 

But  Mr.  Justice  Field  speaks  more  appositely  to  the  true 
point  of  view  when  he  proceeds  to  say,  — 

"  Legislation  could  not,  therefore,  be  appropriate  which,  under 
pretence  of  prohibiting  a  State  from  doing  certain  things,  should 
tend  to  destroy  it,  or  any  of  its  essential  attributes.  .  .  .  Indeed, 
the  independence  of  a  State  consists  in  the  independence  of  its 
legislative,  executive,  and  judicial  officers,  through  whom  alone  it 
acts.  If  this  were  not  so,  a  State  would  cease  to  be  a  self-existing 
and  an  indestructible  member  of  the  Union,  and  would  be  brought 
to  the  level  of  a  dependent  municipal  corporation,  existing  only 
with  such  powers  as  Congress  might  jirescribe. 

"  I  cannot  think  I  am  mistaken  in  saying  that  a  change  so  radical 
in  the  relation  between  the  Federal  and  State  authorities,  as  would 
justify  legislation  interfering  with  the  independent  action  of  the 
different  departments  of  the  State  governments,  in  all  matters  over 
which  the  States  retain  jurisdiction,  was  never  contemplated  by  the 
recent  amendments.     The  people  in  adopting  them  did  not  suppose 

1  Ante,  pp.  303,  315. 


THEORY   OF   OTJR   NATIONAL   EXISTENCE.  385 

Cases  of  the  third  Class. 

they  were  altering  the  fundamental  theory  of  their  dual  system  of 
governments."     (lb.  362.) 

But,  as  already  observed,  it  is  still  possible  that  a  revolu- 
tionary change  ma}^  have  altered  the  fundamental  theory 
referred  to,  even  though  it  should  not  have  been  expressed 
in  these  Amendments ;  and  the  question  still  is,  whether 
these  decisions  can  be  sustained  otherwise  than  on  the 
assumption  of  such  a  political  change.^ 

Even  more  important  than  the  cases  last  cited,  in  the 
relation  in  which  the  decisions  of  the  Supreme  Court  are 
here  referred  to,  that  is,  as  indicating  a  political  theory, 
are  the  cases  which  come  under  the  third  class,  as  above 
distinguished ;  in  which  are  considered  new  claims  of 
power  by  the  general  Government,  not  made  on  the  basis 
of  any  grant  of  power  in  the  recent  Amendments.^ 

The  so-called  Maryland  Election  Case,  ^x  parte  Siebold 
and  others,  10  Otto,  371,  comes  within  this  description.  It 
was  presented  in  the  Supreme  Court  on  the  petition  of 
certain  persons  for  habeas  corpus  and  their  discharge  from 
imprisonment  under  the  sentence  of  a  Circuit  Court  of  the 
United  States.  The  petitioners,  having  been,  under  the 
State  law,  "  judges  of  election,"  at  an  election  in  Baltimore 
in  1878,  at  which  representatives  to  Congress  were  voted 
for,  had  been  indicted  in  that  Court  under  the  law  of  Con- 
gress for  having  resisted  the  United  States  marshal  and 

1  In  a  general  connection  with  cases  like  the  Slaughter  House  Cases, 
and  with  all  the  legislation  based  on  the  Fourteenth  Amendment,  attention 
may  here  be  called  to  the  preamble  to  the  Act,  Mar.  1,  1875  {ante,  p.  380),  — 
"  Whereas,  it  is  essential  to  just  government  we  recognize  the  equality 
of  all  men  before  the  law,  and  hold  that  it  is  the  duty  of  government,  in  all 
its  dealings  with  the  people,  to  mete  out  equal  and  exact  justice  to  all,  of 
whatever  nativity,  race,  color,  or  persuasion,  religious  or  political ;  and  it 
being  the  appropriate  object  of  legislation  to  enact  great  fundamental  prin- 
ciples into  law ;  Therefore,"  etc. 

This  is  indeed  talking  like  a  sovereign.  The  question  occurs.  When 
and  how  did  a  legislature,  existing  under  the  strict  limitations  of  a  law  in  a 
written  Constitution,  attain  the  position  to  "  do  it  in  Cambyses'  vein  "  ? 

3  Ante,  p.  370. 


386  THE   PLACE   OF   SOVEREIGNTY. 

Ex  parte  Siebold. 

certain  "  supervisors  "  appointed  by  the  United  States  cir- 
cuit judge,  when  interfering  in  such  election,  as  was,  it  was 
claimed,  their  right  and  duty  to  do  under  certain  provisions 
of  the  Revised  Statutes  of  the  United  States.^ 

Some  of  the  parties  so  indicted  were  also  held  imder 
sentence  for  the  act  popularly  known  as  "  stuffing  the 
ballot-box,"  described  in  the  indictment  as  "■  a  certain  act 
not  then  and  there  authorized  by  any  law  of  the  State  of 
Maryland,  and  not  authorized  then  and  there  by  any  law 
of  the  United  States,  by  then  and  there  fraudulently  and 
clandestinely  putting  and  placing  in  the  ballot-box  of  the 
said  precinct  twenty  (and  more)  ballots  (within  the  intent 
and  meaning  of  section  5514  of  said  statutes)  which  had 
had  not  been  voted  .  .  .  contrary  to  section  5515  of  said 
statutes,  and  against  the  peace,  government,  and  dignity 
of  the  United  States."  2 

1  Rev.  Stat.  Title  XXVI.  "The  Elective  Franchise,"  sec.  2011.  "The 
judge  of  the  Circuit  Court  of  the  United  States,  wliereiii  any  city  or  town 
having  upwards  of  twenty  thousand  iniiabitants  is  situated,  upon  being  in- 
formed by  two  citizens  tliereof,  prior  to  any  registration  of  voters  for,  or  any 
election  at  which  a  Representative  or  Delegate  in  Congress  is  to  be  voted 
for,  that  it  is  their  desire  to  have  such  registration  or  election  guarded  or 
scrutinized,  shall  open  the  circuit  court  at  the  most  convenient  point  on  tlie 
circuit."  Sec.  2012.  "  The  judge  shall  appoint  two  supervisors  of  election  for 
every  election  district  in  such  city  or  town."  Sees.  2016,  2017,  declare  the 
duties  and  powers  of  sucii  supervisors,  and  sees.  2021,  2022,  tliose  of  mar- 
shals and  their  general  and  special  deputies  at  such  elections.  These  pro- 
visions were  firstcnacted  in  the  supplementary  Act  of  Feb.  28,  1871, 16  U.  S. 
Stat.  433. 

2  Sees.  5506  to  5515  inclusive,  consist  of  provisions  originally  found  in 
the  Acts  of  May  81,  1870,  and  of  February  28,  1871,  and  are  included  in  tlie 
Revised  Statutes  under  Title  LXX.  c.  7,  under  tlie  name,  "  Crimes  against 
the  Elective  Franchise  and  Civil  Rigiitsof  Citizens."  In  the  opinion  of  tlie 
court  (10  Otto,  380)  Sec.  5515  is  given,  which  reads:  "Every  officer  of  an 
election  at  whicli  any  representative  or  delegate  in  Congress  is  voted  for, 
wliether  sucii  officer  of  election  be  appointed  or  created  by  or  under  any  law 
or  authority  of  the  United  States,  or  by  or  under  any  State,  territorial,  dis- 
trict, or  municipal  law  or  authority,  wiio  neglects  or  refuses  to  jierform  any 
duty  in  regard  to  sucli  election  required  of  him  by  any  law  of  the  United 
States  or  of  any  State  or  Territory  tliereof;  or  wlio  violates  any  duty  so  im- 
posed, or  who  knowingly  does  any  acts  thereby  unauthorized,  with  intent  to 


THEOHY   OF   OUR   NATIONAL   EXISTENCE.  387 

Ex  parte  Clarke. 

In  the  so-called  Ohio  Election  Case,  Ex  jyarte  Clarke, 
10  Otto,  399,  it  was  said  in  the  opinion  of  the  court:  — 

"  The  principal  question  is  whether  Congress  had  constitutional 
power  to  enact  a  law  for  punishing  a  State  officer  of  election  for  the 
violation  of  his  duty  under  a  State  statute  in  reference  to  an  elec- 
tion of  a  representative  to  Congress.  As  this  question  has  been 
fully  considered  in  the  previous  case,  it  is  unnecessary  to  add  any- 
thing further  on  the  subject.  Our  opinion  is,  that  Congress  had 
constitutional  power  to  enact  the  law ;  and  that  the  cause  of  com- 
mitment was  lawful  and  sufficient."      Ih.  403. 

It  may  be  noticed  that,  in  the  indictments  in  the  Mary- 
land case,  the  actions  of  the  State  officers  are  charged  only 
as  violations  of  the  statute  law  of  the  United  States.  The 
only  allusion  to  State  authority  is  in  the  allegation  that 
the  acts  charged  were  "  not  authorized  by  any  law  of  the 
State."  The  cases,  therefore,  are  essentially  different,  and 
we  know  only  from  the  above  passage  that  the  argument 
for  the  court's  opinion  in  the  first  case  was  intended  to 
apply  as  well  to  the  second,  in  which  case  the  petitioner, 
being  a  State  officer  of  election  at  an  election  for  a  repre- 
sentative to  Congress  in  the  city  of  Cincinnati,  had  been 
convicted  of  a  misdemeanor  in  the  Circuit  Court  of  the 
United  States,  under  sec.  5515  of  the  Revised  Statutes, 
for  a  violation  of  the  law  of  Ohio  in  not  conveying  the 
ballot-box,  after  it  had  been  sealed  up  and  delivered  to 
him  for  that  purpose,  to  the  county  clerk,  and  for  allowing 
it  to  be  broken  open. 

affect  any  such  election,  or  the  result  thereof;  or  who  fraudulently  makes 
any  false  certificate  of  the  result  of  such  election  in  regard  to  such  Repre- 
sentative or  Delegate ;  or  who  witholds,  conceals,  or  destroys  any  certificate 
of  record  so  required  by  law  respecting  the  election  of  any  such  Represent- 
ative or  Delegate,  or  who  neglects  or  refuses  to  make  and  return  such  cer- 
tificate as  required  by  law ;  or  who  aids,  counsels,  procures,  or  advises  any 
voter,  person,  or  officer  to  do  any  act  by  this  or  any  of  the  preceding  sec- 
tions made  a  crime,  or  to  omit  to  do  any  duty  the  omission  of  which  is  by 
this  or  any  of  such  sections  made  a  crime,  or  attempts  to  do  so,  shall  be  pun- 
ished as  prescribed  in  section  fifty-five  hundred  and  eleven." 


388  TFIE    PLACE    OF    SOVEREIGNTY. 

The  Maryland  and  Ohio  Election  Cases. 

In  each  of  these  cases  the  Supreme  Court  sustained  the 
judgment  of  the  Circuit  Court  and  refused  the  habeas  corpus. 
Mr.  Justice  Bradley  delivered  the  opinion  of  the  majority 
in  both  cases ;  but  the  constitutional  questions  involved  in 
the  two  cases  were  discussed  principally  in  the  opinion 
delivered  in  the  Maryland  case. 

The  dissenting  opinion  which  was  delivered  by  Mr.  Jus- 
tice Field,  and  in  Mdiich  Mr.  Justice  Clifford  concurred,  was 
more  directly  applicable  to  the  question  raised  in  the  Ohio 
case,  though  given  by  them  as  defending  their  dissent  in 
the  other  case  also. 

In  the  opinion  of  the  court  delivered  in  Ex  pa^'te  Siebold, 
10  Otto,  382,  it  is  said :  — 

"These  portions  of  the  Revised  Statutes  are  taken  from  the  act 
commonly  known  as  the  Enforcement  Act,  approved  May  31,  1870, 
and  entitled  '  An  Act  to  enforce  the  riglit  of  citizens  of  the  United 
States  to  vote  in  the  several  States  of  this  Union  and  for  other  pur- 
poses,' and  from  the  supplement  to  that  Act,  approved  February  28, 
1871.  They  relate  to  elections  of  members  of  the  House  of  Rep- 
resentatives, and  were  an  assertion  on  the  part  of  Congress  of  a 
power  to  pass  laws  for  regulating  and  superintending  said  elections, 
and  for  securing  the  purity  thereof,  and  the  rights  of  citizens  to  vote 
thereat  peaceably  and  without  molestation.  It  must  be  conceded 
to  be  a  most  important  power  and  of  a  fundamental  character.  In 
the  light  of  recent  history  and  of  the  violence,  fraud,  corruption,  and 
irregularity  which  have  frequently  prevailed  at  such  elections,  it 
may  easily  be  conceived  that  the  exertion  of  the  power,  if  it  exists, 
may  be  necessary  for  the  stability  of  our  frame  of  government." 

Although  the  court  here  speaks  of  these  provisions  as 
part  of  the  "  Enforcement  Act,"  ^  and  also  refers  to  some 

1  In  Macpherson's  History  of  Reconstruction,  the  Act  of  Congress  so 
designated  is  arranged  in  a  chapter  under  the  general  heading,  "Fifteenth 
Amendment;  Votes  on  Katification,  rroclaination  of  Ratification,  Bills  enfor- 
cing and  Votes  thereon,"  p.  545.     The  Fifteenth  Amendment  reads  :  — 

"  Sect.  1.  The  riglit  of  citizens  of  the  United  States  to  vote  shall  not  be 
denied  or  abridged  by  the  United  States,  or  by  any  State,  on  account  of  race, 
color,  or  previous  condition  of  servitude. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  389 

The  Maryland  and  Ohio  Election  Cases. 

recent  events  as  the  occasion  for  the  exercise  of  the  power, 
it  should  be  noticed  that,  in  the  same  opinion,  this  par- 
ticular legislation  is  not  referred  to  any  pf  the  Amend- 
ments, but  to  a  provision  in  the  original  Constitution  itself. 
As  stated  by  the  court  (ib.  383),  — 

"  The  clause  of  the  Constitution  under  which  the  power  of  Con- 
gress, as  well  as  that  of  the  State  legislatures,^  to  regulate  the  elec- 
tions of  senators  and  representatives  arises,  is  as  follows :  '  The 
times,  places,  and  manner  of  holding  elections  for  Senators  and 
Representatives  shall  be  prescribed  in  each  State  by  the  legislature 
thereof;  but  the  Congress  may  at  any  time  by  law  make  or  alter 
such  regulations  except  as  to  the  place  of  choosing  Senators.'  " 

While  the  court  had  thus  stated  the  question  for  its  de- 
cision as  one  of  power,  the  position  relied  on  by  the  peti- 
tioners' counsel  rendered  any  argument  of  that  question 
almost  superfluous ;  and  this  seems  to  be  the  view  taken 
by  the  court  in  this  opinion.  It  being  admitted,  as  it  was 
as  far  as  the  merits  of  tliis  particular  case  were  concerned, 
that  the  word  "regulations"  was  equivalent  to  the  whole 
statutory  law  applicable  to  the  exercise   of  the   elective 

"  Sect.  2.  The  Congress  shall  have  power  to  enforce  this  article  by  aj)- 
propriate  legislation." 

It  is  evident  that  most  of  the  sections  of  that  Act  are  based  entirely  on 
the  tenor  of  this  Amendment,  and  it  is  highly  probable  that  the  northern 
public  have  taken  these  other  provisions,  referred  to  in  these  cases,  as  con- 
nected in  some  v?ay  or  other  with  the  same  Amendment.  Very  few  proba- 
bly have  ever  thought  of  these  provisions  as  based  on  an  entirely  distinct 
claim  of  power,  and  most  persons  have  contemplated  the  Act  as  being  "re- 
construction "  only  as  far  as  the  States  of  the  Confederacy  were  to  be  affected. 
Compare  a«fe,  pp.  235,  n.  1,  370,  n.  1. 

1  Even  in  this  apparently  simple  introduction  of  the  grant  of  power  to 
Congress  (Art.  I.  sect,  iv.,)  there  is  a  foreshadowing  of  political  doctrine  which 
is  nearly  equivalent  to  a  prejudging  of  the  whole  question.  It  is  intimated 
that  in  the  matter  of  elections  of  senators  and  representatives  the  State  gov- 
ernments and  Congress  are  equally  dependent  on  a  grant  of  power  in  the 
Constitution.  It  is  evident  that  Congress,  which  exists  under  the  Constitu- 
tion, could  have  no  power  whatever  unless  specially  granted  in  the  Consti- 
tution by  those,  whoever  fhey  were,  from  whom  it  derives  its  authority. 
But  it  is  equally  evident  that  the  States,  whose  existence  was  at  least  inde- 


390-  THE   PLACE   OF   SOVEREIGNTY. 

Ex  parte  Siebold. 

fraiicliise  in  such  elections,  and  that  Congress  might  at  any 
time  bring  this  within  the  sphere  of  its  exclusive  legis- 
lation,^ there  was  little  room  for  argument  on  the  mere 
language  of  the  Constitution.  It  is  therefore  mainly  as 
containing  political  doctrine,  extending  beyond  the  exi- 
gency of  this  particular  case,  that  this  opinion  is  specially 
noticeable ;  and  in  this  matter,  even  if  judges  could  speak 
officially,  their  statements  of  history  and  their  inferences 
from  them  are  open  to  the  criticism  of  all  their  fellow- 
citizens. 

The  petitioners'  argument  confined  the  range  of  the 
question  to  the  co-operation  of  two  governments.  The 
court  distinguished  "special"  and  "general"  reasons  as 
having  been  urged  against  this  co-operation,  observing  of 
the  first  (ih.  391),— 

"We  have  thus  gone  over  the  principal  i"easons  of  a  special  char- 
acter relied  on  by  the  petitioners  for  maintaining  the  general  propo- 
sition for  which  they  contend ;  namely,  that  in  the  regulation  of 
elections  for  Representatives,  the  national  and  State  governments 
cannot  co-operate,  but  must  act  exclusively  of  each  other  ;  so  that, 
if  Congress  assumes  to  regulate  the  subject  at  all,  it  must  assume 
exclusive  control  of  the  whole  subject." 

After  this  the  court  proceeds  to  say,  — 

"  The  more  general  reason  assigned,  to  wit,  that  the  nature  of 
sovereignty  is  such  as  to  preclude  the  joint  co-operation  of  two  sov- 

pendent  of  the  Constitution,  would  have  had  the  entire  control  of  tlie  matter, 
even  though  nothing  had  been  said  in  the  Constitution  beyond  providing 
that  there  should  be  a  Senate  and  House  of  Representatives.  In  tliis  in- 
stance, as  in  so  many  otliers  in  judicial  opinions,  the  latent  idea  is  that  tlie 
States  in  union  are  what  they  are  because  tliere  is  a  Constitution  ;  while  the 
fact  has  been  that  the  Constitution  was  what  it  was  because  there  were 
States  in  union.     Compare  ante,  ch.  IV. 

^  "  The  counsel  for  the  petitioners,  however,  do  not  deny  that  Congress 
may,  if  it  chooses,  assume  the  entire  regulation  of  the  elections  of  Repre- 
sentatives." Opinion,  10  Otto,  382.  This  being  admitted,  and  on  saying, 
"In  exercising  tlie  power,  however,  we  are  bound  to  presume  that  Congress 
has  done  so  in  a  judicious  manner"  (ib.  393),  there  was  no  need  of  saying 
more. 


THEORY   OF    OUR   NATIONAL   EXISTENCE  891 

The  Maryland  and  Ohio  Election  Cases. 

ereigus,  even  in  a  matter  in  which  they  are  mutually  concerned,  is 
not,  in  our  judgment,  of  sufficient  force  to  prevent  concurrent  and 
harmonious  action  on  the  part  of  the  national  and  State  government 
in  the  election  of  Representatives.  It  is  at  most  an  argument  ah 
inconveniente.  There  is  nothing  in  the  Constitution  to  forbid  such 
co-operation  in  this  case.  On  the  contrary,  as  already  said,  we  think 
it  clear  that  the  clause  in  the  Constitution  relating  to  the  regulation 
of  such  elections  contemplates  such  co-operation  whenever  Congress 
deems  it  expedient  to  interfere  merely  to  alter  or  add  to  existing 
regulations  of  the  State." 

This  mention  of  "  the  joint  co-operation  of  two  sover- 
eigns "  recalls  that  supposed  division  of  sovereignty  which 
so  man}'^  have  thouglit  exemplified  in  our  polity.^  In  this 
particular  application,  the  theory  appears  in  a  somewhat 
ludicrous  light,  where  it  is  asserted  in  the  same  breath  that 
in  this  action  one  sovereign  is  to  be  the  instrument  of  the 
will  and  pleasure  of  the  other.  In  the  very  next  sentences 
the  power  of  Congress  is  presented  as  "  paramount,"  which 
makes  the  position  of  the  other  sovereign  still  more  difficult 
of  comprehension. 2 

The  court  proceeds  to  say,  — 

"  If  the  two  governments  had  an  entire  equality  of  jurisdiction, 
there  might  be  an  intrinsic  difficulty  in  such  co-oj^eration.  Then 
the  adoption  by  the  State  government  of  a  system  of  regulations 
might  exclude  the  action  of  Congress.  By  first  taking  jurisdiction 
of  the  subject,  the  State  would  acquire  exclusive  jurisdiction  in 
virtue  of  a  well-known  principle  applicable  to  courts  having  co- 
ordinate jurisdiction  over  the  same  matter.^     But  no  such  equality 

1  Ante,  pp.  106,  295. 

2  Perhaps  tlie  petitioners'  argument  could  be  stated  more  correctly  as 
urging  that  "co-operation"  implies  voluntary  action  by  the  two  parties. 
The  court's  idea  of  co-operation  might  be  likened  to  the  co-operation  of  the 
cat  and  the  monkey  in  pulling  chestnuts  from  the  fire.  This  may  be  "  concur- 
rent and  harmonious  action  " ;  but  where  is  the  division  oi  sovereignty  •?  What 
is  a  sovereign  cat's-paw  *? 

3  The  idea  of  co-ordinate  jurisdiction  is  excluded  by  the  idea  of  sover- 
eignty. One  must  be  aut  Ccesar  aut  nullus.  The  parallel  suggested  above  is 
another  illustration  of  looking  at  a  political  question  from  the  lawyer's  point 


392  THE   PLACE   OF   SOVEREIGNTY. 

Ex  pane  Siebold.     Opinion  of  the  Court. 

exists  iu  the  present  case.  The  power  of  Congress  is  paruniouut, 
and  may  be  exercised  at  any  time,  and  to  any  extent  it  deems  expe- 
dient ;  and  so  far  as  it  is  exercised,  and  no  farther,  the  regulations 
effected  supersede  those  of  the  State  which  are  inconsistent  there- 
with." 

In  the  earlier  part  of  the  same  opinion  (ih.  383),  it  had 
been  said  in  regard  to  the  clauses  relating  to  this  subject 
in  the  Constitution, — 

"  If  not  under  the  prepossession  of  some  abstract  theory  of  the 
relations  between  the  States  and  the  national  Government,  we 
should  not  have  any  difficulty  in  understanding  them." 

And  it  is  equally  true  that  there  is  a  necessity  for  some 
"prepossession,"  whether  acknowledged  or  not.  In  the 
opinion,  the  question  is  stated  as  if  it  were  only  one  of  the 
distribution  of  powers  between  the  State  governments  and 
the  general  Government  under  the  written  Constitution  as 
law.  This  was  the  immediate  question.  But  if,  in  the 
argument,  the  construction  of  the  clause  is  based  entirely 
on  a  view  of  "  the  relations  "  referred  to,  the  political  "pre- 
possession "  of  each  judge  joining  in  the  opinion  is  essential 
to  explain  the  force  of  the  decision. 

The  court  argues  (ih.  387),  — 

"  It  is  objected  that  Congress  has  no  power  to  enforce  State  laws 
or  to  punish  State  officei's,  and  esjiecially  has  no  power  to  punish 
them  for  violating  the  laws  of  their  own  State.  As  a  general  prop- 
osition, this  is  undoubtedly  true ;  but  when,  in  the  performance  of 
their  functions,  State  officers  are  called  upon  to  fulfil  duties  which 
they  owe  to  the  United  States  as  well  as  to  the  State,  has  the  for- 
mer no  means  of  compelling  such  fulfilment  ?  Yet  that  is  the  case 
here.     It  is  the  duty  of  tlie  States  to  elect  Representatives  to  Con- 

of  view,  starting  with  a  document  to  be  interpreted  (Conip.  ante,  p.  109,  n.  3). 
Tlie  functions  of  the  one  _<7ow)-nm^HMnay  be  tliouglit  more  dignified  or  more 
"  national "  tiian  tliose  of  the  other.  But  the  two  govertimenls  are  alike  in 
this  respect,  —  that  tliey  are  each  instruments  of  a  political  superior,  and 
in  that  view  they  stand  on  the  same  level.    Brownson,  Am.  Rep.  254. 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  893 

Ex  parte  Siebold. 

gress.  The  due  aud  fair  election  of  these  Reijresentatives  is  of  vital 
importance  to  the  United  States.  The  government  of  the  United 
States  is  no  less  concerned  in  the  transaction  than  the  State  gov- 
ernment is.  It  certainly  is  not  bound  to  stand  by  as  a  passive 
spectator  when  duties  are  violated  and  outrageous  frauds  are  com- 
mitted. It  is  directly  interested  in  the  faithful  performance,  by  the 
officers  of  the  election,  of  their  respective  duties.  Those  duties  are 
owed  as  well  to  the  United  States  as  to  the  State.  This  necessarily 
follows  from  the  mixed  character  of  the  transaction,  —  State  and 
national.  A  violation  of  duty  is  an  offence  against  the  United 
States,  for  which  the  offender  is  justly  amenable  to  that  government." 

It  depends  entirely  upon  some  political  "  prepossession  " 
whether  these  propositions  are  not  in  flat  contradiction  to 
the  Constitution,  or  at  least  a  begging  of  the  question. 
Under  no  theory  of  government  known  before  the  war 
were  the  State  officials  under  any  obligation  to  the  general 
Government  in  their  performance  of  their  functions  under 
the  law  of  the  State.  Whatever  may  be  the  abstract  truth 
as  to  the  -divisibility  of  sovereignty,  it  is  certain  that  the 
plan  of  government  was  based  on  a  distribution  and  sepa- 
ration of  powers  between  two  mutually  independent  agents, 
—  the  State  governments  and  the  general  Government. 
Moreover,  unless  a  revolution  has  taken  place,  it  is  not 
now,  because  it  never  had  been  before,  "  the  duty  of  the 
States  to  elect  representatives  to  Congress."  ^  The  only 
duties  which  the  States  owed,  they  owed  as  sovereigns  owe 
dut}^ ;  but  not  as  corporations  under  law.  The  United 
States  —  not  meaning,  as  in  this  opinion  is  implied,  the 
general  Government,  but  the  States  in  their  union  —  were 
morally  bound  to  each  other  and  to  every  human  being 
under  their  dominion.  But  they  were  not,  either  collec- 
tively or  individually,  under  any  duty  to  a  Congress,  an 
executive  and  a  judiciary  existing  as  their  own  instrument 
of  general  government,  under  their  law  contained  in  the 
Constitution.^ 

1  Ante,  p.  305.  ^  Compare  ante,  ch.  IV. 


394  THE   PLACE   OF   SOVEREIGNTY. 

Ex  parte  Siebold.     Opiniun  of  the  Court. 

"  The  due  and  fair  election  of  these  representatives  is 
of  vital  importance  to  the  United  States,"  that  is,  to  the 
States  in  their  union,  as  the  sovereign.  It  is  so  also  to  the 
United  States,  as  meaning  a  country  and  its  population,  or 
to  each  inhabitant  of  the  United  States.  But  what  its  im- 
portance may  be  to  the  government  which,  in  this  opinion, 
is  identified  with  the  United  States,  to  the  exclusion  of  the 
States  themselves,  is  something  that  has  not  yet  appeared. 
For  it  is  begging  the  question,  as  one  under  the  Constitu- 
tion as  law,  to  say  that  the  Government  of  the  United 
States,  meaning  Congress,  etc.,  is  "concerned"  as  having 
power  in  the  matter,  or  that  it  "  is  certainly  not  bound  to 
stand  by,"  etc.  This  Government,  being  only  an  agent 
and  not  a  sovereign,  has  no  concern  in  the  determination 
of  its  own  person7iel,  and  is  "  bound  "  to  do  onl}"  what 
these  States  in  union  may  have  empowered  it  to  do  by 
the  written  instrument  which  rests  upon  their  will,  and 
not  on  the  will  of  that  Government. 

That  State  officials  should  be  responsible  only  to  the 
State  which  appoints  them  may  be  a  bad  arrangement : 
and  so  may  the  whole  "frame  of  government."  But  tlie 
persons  who  constitute  the  general  Government  have  no 
responsibility  for  that.  The  servant  must  take  his  place 
as  he  finds  it. 

On  page  393  it  is  said,  in  the  opinion  of  the  court,  — 

"The  views  we  have  expressed  seem  to  us  to  be  founded  on 
such  plain  and  practical  princi|)les  as  hardly  to  need  any  labored 
argument  in  their  su25port.  We  may  mystify  anything.  But  if 
we  take  a  plain  view  of  the  words  of  the  Constitution,  and  give 
them  a  fair  and  obvious  interpretation,  we  cannot  fail  in  most  cases 
of  coming  to  a  clear  understanding  of  its  meaning.  AVe  shall  not 
have  far  to  seek.  We  shall  find  it  on  the  surface,  and  not  in  the 
profound  depths  of  speculation. 

"  The  greatest  difficulty  in  coming  to  a  just  conclusion  arises  from 
a  mistaken  notion  with  reiiard  to  the  relations  which  subsist  between 


THEORY   OF    OUR   NATIONAL   EXISTENCE.  395 

Political  Doctrines  in  Ex  parte  Siebold. 

the  State  and  national  governments.  It  seems  to  be  often  over- 
looked that  a  national  Constitution  has  been  adopted  in  this  country 
establishing  a  real  government  therein,  operating  upon  persons  and 
territory  and  things  ;  and  which,  moreover,  is,  or  should  be,  as  dear 
to  every  American  citizen  as  his  State  government  is.  Whenever 
the  true  conception  of  the  nature  of  this  government  is  once  con- 
ceded, no  real  difficulty  will  arise  in  the  just  interpretation  of  its 
powers.  But  if  we  allow  ourselves  to  regard  it  as  a  hostile  organi- 
zation, opposed  to  the  proper  sovereignty  and  dignity  of  the  State 
governments,  we  shall  continue  to  be  vexed  with  difficulties  as  to 
its  jurisdiction  and  authority." 

From  the  court's  reliance,  in  the  first  paragraph,  upon 
the  "  plain  view  of  the  words,"  etc.,  an  intention  to  avoid 
any  profundity,  in  the  second,  must  be  inferred.  And 
every  view  of  "  the  relation  between  the  State  and  national 
governments  "  is  superficial  which  assumes  that  these  gov- 
ernments  are  the  only  persons  concerned  in  the  exercise  of 
political  powers,  and  is  deceptive,  also,  if  it  presents  them  as 
two  parties  between  whom  sovereignty  has  been  divided  by 
a  constitution  assumed  as  self-existent  law,  and  if  it  leaves 
out  of  view  the  fact  that  there  must  always  be  somebody 
in  existence  to  whom  its  continuance  from  the  time  of  its 
adoption  is  ascribable ;  who  certainly  is  neither  the  "  na- 
tional" nor  the  State  governments,  separately  or  together. 
But  this  is  what  the  court  proposes  to  overlook,  probably 
as  being  down  in  "  the  profound  depths  of  speculation," 
and  to  present  "  the  surface "  view  that,  whatever  the 
State  governments  may  be,  the  general  Government  is  a 
government  in  the  sense  of  a  sovereign  personality,  holding 
its  powers  by  right  of  possession  above  law.^ 

1  This  assumption,  which  derives  its  plausibility  from  using  the  word 
"government"  in  two  senses  (ante,  p.  302),  is  also  the  basis  of  the  political 
expansion  which  Judge  Story,  in  Book.  III.,  eh.  xi.  of  his  Commentaries,  had 
given  for  legitimate  construction  of  the  constitutional  grant  of  power,  of  which 
he  says,  ti.  sec.  816,  "Its  propriety  rested  upon  this  plain  proposition,  —  that 
every  government  ought  to  contain  in  itself  the  means  of  its  own  preservation. 


396  THE   PLACE   OF   SOVEREIGNTY. 

Ex  parte  Siebold.     Opinion  of  the  Court. 

The  propositions  upon  which,  in  their  general  and  sweep- 
ing application,  the  court  here  rests  its  decision,  are  not 
legal  principles,  but  political  doctrine.  The  court  might 
have  said  that,  with  such  a  "  prepossession  of  some  abstract 
theor}'-  of  the  relations  between  the  States  and  the  general 
Government,"  it  "could  have  no  diflSculty"  in  deciding 
any  question  of  power.  But  the  question  remains  whether 
such  a  "prepossession"  is  consistent  with  the  continued 
political  existence  of  the  States  in  their  union,  and  as  to 
this  every  inhabitant  of  the  land  is  called  upon  to  have  an 
opinion.^ 

Without  disputing  the  correctness  of  a  judgment  of  a 
court  in  a  particular  case,  the  language  of  its  opinions  may 
be  open  to  criticism  either  for  rhetoric  or  logic,  as  well  as 
for  political  significance. 

In  concluding  the  opinion  in  this  case  it  is  said  (10  Otto, 
398),— 

If,  in  the  Constitution,  there  were  some  departures  frona  this  principle  (as  it 
might  be  admitted  there  were),  they  were  matters  of  regret,  and  dictated  by 
a  controlling  moral  or  political  necessity  ;  and  they  ought  not  to  be  extended." 
It  never  seems  to  have  occurred  to  Judge  Story  that  his  regrets  and  views 
of  what  the  Constitution  ought  to  have  been  were  not  of  the  highest  conse- 
quence in  a  professed  interpretation  of  the  Constitution.  And  what  he  has 
here  assumed  as  the  "  principle  "  is  in  direct  contradiction  to  the  fact  upon 
which  the  whole  fabric  was  based,  as  shown  by  history.  It  is  rather  re- 
markable that  the  court  in  the  opinion  has  made  no  reference  to  this  chapter 
of  the  Commentaries.  But,  perhaps,  such  an  exhibition  of  the  possible  ex- 
tent of  the  claim  of  power  might  have  seemed  unpropitious  to  tlie  allow- 
ance of  the  much  more  modest  pretensions  of  the  Acts  of  Congress. 

1  He  may  be  called  on  to  do  more  than  have  an  opinion.  His  liberty  and, 
perhaps,  life,  may  depend  upon  the  question.  What  opinion  is  the  true  opin- 
ion? In  sec.  5522  of  the  Revised  Statutes,  among  other  acts  declared  crim- 
inal, it  is  mentioned  that  "ever3'  person  .  .  .  who  refuses  or  neglects  to 
aid  and  assist  any  supervisor  of  election  or  the  marshal  or  his  general  or 
special  deputies  or  either  of  tliem,  in  the  performance  of  his  or  their  duties, 
when  required  by  him  or  them  or  either  of  them  to  give  such  aid  and  assist- 
ance, shall  be  liable  to  instant  arrest  without  process,  and  shall  be  punished 
by  imprisonment  not  more  than  two  years,  or  by  fine  of  not  more  than  three 
thousand  dollars,  or  by  both  such  fine  and  imprisonment,  and  shall  pay  the 
cost  of  the  prosecution." 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  397 

Ex  parte  Siebold.     Opinion  of  the  Court. 

"  In  our  judgment  Congress  had  the  power  to  vest  the  appoint- 
ment of  tlie  supervisors  in  question  in  the  circuit  courts."  -^ 

■, "  The  doctrine  laid  down  at  the  close  of  counsel's  brief,  that  the 
State  and  national  governments  are  co-ordinate  and  altogether 
equal,  on  which  their  whole  argument,  indeed,  is  based,  is  only 
partially  true. 

"  The  true  doctrine,  as  we  conceive,  is  this  :  that  while  the  States 
are  really  sov'ereign  as  to  all  matters  which  have  not  been  granted 
to  the  jurisdiction  and  control  of  the  United  States,  the  Constitution 
and  constitutional  laws  of  the  latter  are,  as  we  have  already  said, 
the  supreme  law  of  the  land ;  and  when  they  conflict  with  the  laws 
of  the  States,  they  are  of  jjaramount  authority  and  obligation.  This 
is  the  fundamental  principle  upon  which  the  authority  of  the  Con- 
stitutioti  is  based,  and  unless  it  be  conceded  in  practice  as  well  as  in 
theory,  the  fabric  of  our  institutions,  as  it  was  contemplated  by  its 
founders,  cannot  stand.  The  questions  involved  have  respect  not 
more  to  the  autonomy  and  continued  existence  of  the  States  than 
to  the  continued  existence  of  the  United  States  as  a  government, 
to  which  every  American  citizen  may  look  for  security  and  protec- 
tion in  every  part  of  the  land." 

It  is  probable  that  many  readers  will  think  there  is  noth- 
ing novel  in  this  morsel  of  "  true  doctrine."  So  far  as  it 
is  true,  certainly,  it  is  not  new  ;  but  as  far  as  it  is  new, 
it  is  either  not  true  or  has  become  so  only  recently.  It  is 
absurd  to  say  that  the  authority  of  the  Constitution  is  based 
on  its  authority.  This  is  assuming  a  constitution  existing 
by  its  own  intrinsic  force.  Tliat  the  Constitution  and  the 
constitutional  laws  of  the  United  States,  that  is,  that  Consti- 
tution and  those  laws  which  derive  their  authority  from  the 
will  of  the  States,  sovereign  in  their  political  union,  are  the 
supreme  law  of  the  land,  nobody  ever  disputed.     If  this  is 

1  In  the  opinion  (10  Otto,  385)  it  is  said,  by  way  of  argument,  "  Where 
the  subject-matter  is  of  a  national  character,  or  one  that  requires  a  uniform 
rule,  it  has  been  held  that  the  power  of  Congress  is  exclusive."  Has  the 
Supreme  Court  the  faculty  of  determining  the  "  national  character  "  of  pow- 
ers as  its  means  of  construing  the  words  of  the  Constitution  1  May  it  be 
inferred  that  this  statute  is  a  "  uniform  rule,"  which  only  operates  at  the 
discretion  of  any  two  citizens  1 


398  THE   PLACE   OF   SOVEREIGNTY. 

Political  doctrines  in  Ex  parte  Siebold. 

the  meaning  of  the  court's  language,  still  this  summary  of 
the  opinion  presents  the  same  begging-the-qnestion  which 
attends  the  whole  argument  in  detail.^  But  it  is  clear  that 
"  the  United  States,"  whose  Constitution  and  laws  are  re- 
ferred to  in  this  passage,  are  not  the  States  being  united, 
but  a  hypothetical  somebod}'',  who  is  invisible  behind  the 
Congress,  executive,  and  judiciary,  at  Washington.  Tlie 
name  —  The  United  States  —  is  in  this  passage  used  to 
designate  "  a  government "  supposed  to  hold  sovereign 
powers  by  grant  or  cession,  as  in  its  own  political  right, 
and  to  apply  the  Constitution  as  its  law,  or  as  expressing 
its  own  will,  and  not  as  the  law  on  which  it  depends  for 
its  existence. 

In  the  last  sentences,  as  in  so  many  other  instances  in 
earlier  opinions,  the  States  and  the  United  States  are  pre- 
sented as  two  distinct  political  personalities.  But  in  this 
case  the  mention  of  the  autonomy  and  existence  of  the 
States  as  cared  for  in  an  assumption  by  Congress  to  control 
the  elective  franchise,  on  the  argument  that  it  is  a  trust  in 
the  States  for  the  benefit  of  a  "  national "  Government,  has 
somewhat  the  air  of  mockery. 

But  it  is  in  the  concluding  words  more  especially  that  a 
novelty  in  doctrine  may  be  intended,  which  is  true  only  on 
tbe  basis  of  revolution.  It  had  been  a  mere  truism  that, 
so  far  as  any  American,  whether  called  citizen  or  sul)ject, 

1  Mr.  Justice  Field  in  his  dissenting  opinion  (10  Otto,  420)  remarked: 
"  Much  has  been  said,  in  argument,  of  the  power  of  the  general  Government 
to  enforce  its  own  laws,  and  in  so  doing  to  preserve  the  peace,  tliougli  it  is 
not  very  apparent  what  pertinency  the  observations  have  to  tlie  questions 
involved  before  us.  No  one  will  deny  that,  in  the  powers  granted  to  it,  the 
general  Government  is  supreme,  and  that,  upon  all  subjects  within  their 
scope,  it  can  make  its  authority  respected  and  obeyed  throughout  tlie  limits 
of  the  Republic;  and  that  it  can  repress  all  disorders  and  disturbances  which 
interfere  with  the  enforcement  of  its  laws.  But  I  am  unable  to  perceive  in 
this  fact,  wliich  all  sensible  men  acknowledge,  any  cause  for  the  exercise  of 
ungrantcd  power.  The  greater  its  lawful  power,  the  greater  the  reason  fof 
not  usurping  more." 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  399 

Ex  parte  Clarke.     The  dissenting  Opinion. 

may  get  any  "  security  or  protection,"  he  must  look  to  tlie 
United  States,  as  the  only  possessors  of  sovereignty  as  a 
unit.  Yet  nothing  in  history  is  more  apparent  than  the 
fact  that  his  "  security  and  protection  "  had  not  been  con- 
fided to  a  general,  central,  or  national  government  ;  and,  if 
it  is  so  now,  it  will  not  be  because  the  existence  of  that 
government  continues  to  be  what  it  was,  but  because  it 
has,  by  some  revolutionary  change,  now  become  the  only 
possessor  of  sovereignty,  and  because  the  name  "  United 
States  "  has  become  a  misnomer,^ 

The  opinion  delivered  by  Field,  J.,  in  the  Ohio  case,  in 
which  Clifford,  J.,  concurred,  was  given  as  supporting 
their  dissent  in  both  cases,  but  is  chiefly  directed  to  the 
question  whether,  in  their  execution  of  the  State  laws,  the 
State  officials  can  be  subject  to  the  jurisdiction  of  the  Fed- 
eral courts.^  Only  a  few  extracts,  bearing  most  directly  on 
the  political  question,  can  here  be  given. 

"  The  act  of  Congress  asserts  a  power  inconsistent  with,  and  sub- 
versive of,  the  independence  of  the  States.  The  right  to  control 
their  own  officers,  to  prescribe  the  duties  they  shall  perform,  with- 
out the  supervision  or  interference  of  any  other  authority,  and  the 
penalties  to  which  they  shall  be  subjected  for  a  violation  of  duty  is 
essential  to  that  independence.  .  .  .  Indeed,  a  State  could  not  be 
considered  as  independent  in  any  matter  with  respect  to  which  its 
officers,  in  the  discharge  of  their  duties,  could  be  subjected  to  pun- 
ishment by  any  external  authority ;  nor  in  which  its  officers,  in  the 
Execution  of  its  laws,  could  be  subject  to  the  supervision  and  inter- 
ference of  others."     lb  409. 

1  At  the  first  session  of  tlie  Forty-sixth  Congress  a  bill  passed  both  Houses 
containing  provisions  repealing  some  of  the  sections  of  the  Revised  Statutes 
relating  to  elections,  the  constitutionality  of  which  was  discussed  in  these 
cases.  President  Hayes  returned  the  bill  with  his  objections  in  a  message, 
May  29,  1879.  His  reasoning,  defending  the  constitutionality  of  the  sections 
in  question,  was  not  essentially  different  from  that  of  the  Supreme  Court  in 
tlie  Maryland  case,  except  in  his  more  decided  reference  to  "  public  opinion  " 
as  supporting  such  legislation.  The  history  of  the  bill,  with  the  message  in 
full,  is  given  in  Macpherson's  Handbook  for  1880,  p.  116. 
2  See  extract  from  the  opinion  of  this  court  in  ex  parte  Clarke,  ante,  p.  387 


400  THE   PLACE   OF   SOVEEETGNTY. 

Ex  parte  Clarke.     Mr.  Justice  Field  dissenting. 

The  following  paragraphs  from  the  same  opinion  have 
a  more  general  bearing  on  the  political  situation  of  the 
general  Government,  seen  in  the  light  of  this  and  other 
decisions. 

"  It  is  true  that,  since  the  recent  amendments  of  the  Constitution, 
there  has  been  legislation  asserting,  as  in  the  instance  before  us,  a 
direct  control  over  State  officers,  which  previously  was  never  sup- 
posed compatible  with  the  independent  existence  of  the  States  in 
their  reserved  powers.  Much  of  that  legislation  has  yet  to  be 
brought  to  the  test  of  judicial  examination ;  and,  until  the  recent 
decisions  in  the  Virginia  cases,  I  could  not  have  believed  that  the 
former  carefully  considered  and  repeated  judgments  of  this  court 
upon  provisions  of  the  Constitution,  and  upon  the  general  character 
and  purposes  of  that  instrument,  would  have  been  disregarded  and 
overruled.  These  decisions  do,  in  my  judgment,  constitute  a  new 
departure.  ...  In  my  judgiuent  —  and  I  say  it  without  intending  any 
disrespect  to  my  associates  —  no  such  advance  has  ever  before  been 
made  toward  the  conversion  of  our  Federal  system  into  a  consolidated 
and  centralized  government.  I  cannot  think  that  those  who  framed 
and  advocated,  and  the  States  which  adopted  the  amendments  con- 
templated any  such  fundamental  change  in  our  theory  of  govern- 
ment as  those  decisions  indicate."  —  10  Otto,  413. 

Further  on  in  this  opinion,  Mr.  Justice  Field  says  of  the 
clause  in  the  Constitution  relied  upon  in  the  argument  to 
sustain  the  legislation  in  question, — it  "does  not,  as  it  seems 
to  me,  give  the  slightest  support  to  it,"  and  proceeds  to 
sustain  his  view  by  analysis  of  the  provision,  as  of  a  statute, 
with  the  conclusion,  — 

"  If  this  view  be  correct,  there  is  no  power  in  Congress,  inde- 
pendently of  all  other  considerations,  to  authorize  the  appointment 
of  supervisors  and  other  officers  to  superintend  and  interfere  with 
the  election  of  Representatives  under  the  laws  of  Ohio  and  Mary- 
land, or  to  annex  a  penalty  to  the  violation  of  those  laws,  and  the 
action  of  the  circuit  courts  was  without  jurisdiction  and  void." 
—  10  Otto,  41 G. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  401 

Field,  J.,  dissenting.     An  Inconsistency. 

But,  immediately  after  this,  Judge  Field  states  a  proposi- 
tion of  a  political  nature,  which,  if  admitted,  may  be  taken 
to  nullify  all  his  preceding  reasoning,  being  essentially  the 
same  doctrine  as  that  upon  which  the  majority  opinion  is 
constructed,  and  which  amounts  to  this,  —  that  the  general 
Government  does  not  exist- for  the  benefit  of  the  States  in 
union,  as  its  political  superior,  but  that  the  States,  in  union, 
exist  for  the  benefit  of  the  general  Government,  as  their 
political  superior. 

Judge  Field,  in  continuation,  argues :  — 

"  The  act  of  Congress  in  question  was  passed,  as  it  seems  to  me, 
in  disregard  of  the  object  of  the  constitutional  provision.  That  was 
designed  simply  to  give  to  the  general  Government  the  means  of 
its  own  preservation  against  a  possible  dissolution,  from  the  hostil- 
ity of  the  States  to  the  election  of  Representatives,  or  from  their 
neglect  to  provide  suitable  means  for  holding  such  elections." 

And  to  support  this  view  the  judge  appeals  to  those  un- 
happy ghosts  —  "  the  founders  "  —  whom  the  majority  of 
the  court  had  already  invoked,  and  who,  though  they  had, 
while  living,  no  authority  to  declare  the  meaning  of  the 
Constitution,  have  now  the  faculty  of  always  giving  testi- 
mony to  suit  any  jurist  who  compliments  them  with  a 
summons. 

"  This  is  evident  from  the  language  of  its  advocates,  some  of  them 
members  of  the  convention,  when  the  Constitution  was  presented  to 
the  country  for  adoption.  In  commenting  upon  it  in  his  report  of 
the  debates,  Mr.  Madison  said  that  it  was  meant  '  to  give  the  na- 
tional legislature  a  power  not  only  to  alter  the  provisions  of  the 
States,  but  to  make  regulations,  in  case  the  States  should  fail  or 
refuse  altogether.''  —  Elliott's  Debates,  402.  And  in  the  Virginia 
convention,  called  to  consider  the  Constitution,  he  observed,  '  It  was 
found  impossible  to  fix  the  time,  place,  and  manner  of  the  election 
of  representatives  in  the  Constitution.  It  was  found  necessary  to 
leave  the  regulation  of  these,  in  the  first  place,  to  the  State  govern- 
ments, as  being  best  acquainted  with  the  situation  of  the  people 


402  THE   PLACE   OF   SOVEREIGNTY. 

Argument  of  Story  in  liis  Commentaries. 

subject  to  the  control  of  the  general  government,  in  order  to  enable 
it  io  produce  uniformity  and  prevent  its  oion  dissolution.'  —  3  Elli- 
ott's Debates,  367.  And,  in  the  Federalist,  Hamilton  said  that  the 
propriety  of  the  clause  in  qxiestion  rested  '  upon  the  evidence  of  the 
plain  proposition  that  every  government  should  contain  in  itself 
the  means  of  its  own  preservation.'  "  —  lb.  416. 

But  this  is  precisely  the  assumption  upon  which  the  ma- 
jority of  the  court  has,  in  these  cases,  rested  their  construc- 
tion of  the  grant  in  tlie  constitutional  provision.  Judge 
Stor}^,  who,  as  has  been  shown,  relies  on  the  same  assump- 
tion, also  refers  to  these  same  authorities.^ 

"Nothing  can  be  more  evident,"  says  Story  (Comm., 
§  817),  "-  than  that  an  exclusive  power  in  the  State  legisla- 
tures to  regulate  elections  for  the  national  Government 
would  leave  the  existence  of  the  Union  entirely  at  their 
merc3^  They  could  at  any  time  annihilate  it  by  neglect- 
ing to  provide  for  the  choice  of  persons  to  administer  its 
affairs.  .  .  .  The  Constitution  ought  to  be  safe  from  risks  of 
this  sort  and  against  the  temptation  to  undertake  such  a 
project."  And,  therefore,  —  is  the  argument  of  Judge 
Story,  in  the  character  of  commentator,  —  the  ^Dersons  who 

1  Compare  ante,  p.  395,  note.  Madison  and  Hamilton,  probably,  conceived 
of  an  actual  division  of  sovereignty  between  the  States  as  separate  political 
personalities,  on  the  one  hand,  and  a  political  somebody  called  "  the  United 
States,"  who,  in  possessing  its  share  of  sovereignty,  was  as  distinct  from  the 
States  as  one  sovereign  country  is  from  every  other.  They  thought  of  the 
United  States  as  one  person,  and  of  the  States  as  so  many  others.  Madison 
may  have  conceived  of  the  States,  as  United  States,  holding  power  by  grant 
from  themselves  sei)arately.  (Compare  ante,  p.  102,  IV.)  Hamilton,  proba- 
bly, thought  that  this  grantee  of  power  called  "the  United  States"  could 
only  be  a  government,  composed  of  persons  holding  executive,  legislative, 
and  judicial  power  as  provided  in  the  Constitution,  and  regarded  this  gov- 
ernment as  possessing  a  portion  of  all  sovereignty  by  right  above  law. 
(Compare  ib.  V.)  Story's  theory  (compare  ante,  108,  IX.)  ignored  the  States 
as  possessing  independent  political  existence,  and  presented  them  in  their 
united  and  separate  relations  as  subordinate  (pvemments  under  a  self-existent 
law  contained  in  the  written  Constitution,  the  ultimate  object  of  which  was 
to  keep  up  a  general  Government,  and  which  was  to  be  enforced  by  that 
government  against  tlie  State  governments  in  order  to  sustain  its  own 
existence. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  403 

Question  of  a  Political  Change. 

may  at  any  one  time  have  been  chosen  to  administer  the 
affairs  of  this  "  union  "  must  have  had  the  power  given  to 
them  to  provide  for  their  successors  in  office.  It  may  be 
asked,  Suppose  the  case  that  the  State  governments  had 
never  acted  in  the  first  instance,  where  would  this  "  na- 
tional Government "  have  been  to  maintain  its  own  exist- 
ence as  a  government?  Would  Story's  fetish  constitution 
have  made  an  executive,  congress  and  judiciary,  by  its 
own  force  ?  ^ 

Each  State  legislature  must  have  been  responsible  to  the 
political  people  of  the  State.  But  if  the  political  peoples 
of  the  States  did  not  choose  to  exercise  their  political  powder 
by  the  elective  franchise,  which,  even  when  exercised  for 
the  purpose  of  keeping  the  general  Government  in  exist- 
ence, w^as  a  right  dependent  on  the  will  of  each  several 
State,  that  government  must  have  expired  by  its  own  lim- 
itations under  the  Constitution.  Whether  the  State  or 
States  which  so  refused  to  exercise  their  political  functions 
for  maintaining  the  general  Government  would  still  be 
States  of  the  union,  or  would  lapse  into  territories  under 
the  exclusive  jurisdiction  of  the  States  in  union  and 
maintaining  the  general  Government,  would  have  been  a 
political  question,  not  capable  of  settlement  under  the 
Constitution  as  law,  and  therefore  not  by  the  judicial 
functions  of  the  general  Government.^ 

That  had  been  the  political  truth,  on  the  supposition 
that,  before  the  war,  the  States  in  union  were  the  United 
States.  But  Judge  Story's  sagacity  maj'-  have  prepared  a 
commentary  to  be  justified  in  the  future,  by  political  revo- 
lution, which  may  now  have  been  realized. 

It  depends  entirely  upon  some  political  "prepossession  " 
wdiether  the  title  which  this  legislation  has  borne  in  the 
original  enactment  and  in  the  Revised  Statutes,^  is  not 
itself  the  assertion  of  a  revolutionary  change,  or  else,  in 

1  Compare  ante,  p.  306.      '^  Compare  ante,  p.  282.      »  Ante,  pp.  385,  386. 


404  THE   PLACE   OF   SOVEREIGNTY. 

I'olitical  Basis  of  the  Elective  Franchise. 

view  of  the  written  Constitution  as  law,  equivalent  to  a 
begging  the  whole  question.  As  the  public  law  of  this 
country  had  been  before  this  legislation,  it  was  solely  as  a 
citizen  of  a  State,  and  from  the  exercise  of  the  so-called 
"reserved"  powers  of  a  State,  that  any  inhabitant  of  the 
United  States  had  any  "  elective  franchise."  The  word 
"  citizen  "  was  a  word  having  two  well-known,  but  distinct, 
meanings.  So  far  as  it  signified  a  person  holding  that  po- 
litical right,  or  franchise,  that  sense  was  not  included  in 
the  meaning  of  the  term  "  citizen  of  the  United  States," 
whatever  may  have  been  the  idea  attached  to  that  term. 
But  that  sense  may  or  may  not  have  been  included  in 
the  meaning  of  the  term  "  citizen  of  one  of  the  States." 
The  right  to  vote,  even  for  President  and  members  of 
Congress,  belonged  to  any  citizen  only  as  he  might  be  the 
citizen  of  one  of  the  States. 

For  corroboration,  if  necessary,  of  this  I  refer  to  Mr. 
Pomeroy,  as  one  of  the  most  pronounced  adherents  of  the 
theory  that  the  Constitution  rests  on  sovereignty  held  by 
the  nation  as  a  mass  ;  ^  that  the  general  government  alone 
represents  such  nation,  and  that  this  inability  of  this  gov- 
ernment to  create  the  electoral  bod}-,  upon  which  its  own 
continuance  depends,  is  "an  anomaly." 

In  §  207  of  his  "  Introduction,"  etc.,^  Mr.  Pomeroy 
says  :  — 

"  Here  we  perceive  that  the  general  government  has  no  voice  in 
deciding  who  shall  be  privileged  to  vote  for  Representatives  in  Con- 
gress.    The  whole  subject  is  controlled  by  State  laws." 

And  in  §  208,  — 

1  Ante,  p.  114. 

2  The  citations  are  from  the  fourth  edition,  published  1870,  the  preface 
being  that  to  the  third,  dated  August,  1875.  The  author  treats  the  subject 
at  some  length,  §§  205-216.  That  he  has  made  no  alteration  of  his  text  in 
consequence  of  the  Fourteentli  and  Fifteenth  Amendments  appears  from 
(Appendix)  §  761,  of  the  fourth  edition. 


THEORY   OF   OTJR   NATIONAL  EXISTENCE.  405 

Political  Basis  of  the  Elective  Franchise. 

"  This  fact  is  a  complete  answer  to  the  somewhat  common  notion 
that  United  States  citizenship  implies  the  right  of  voting.  Nothing 
can  be  further  from  the  truth.  Not  a  vote  is  cast,  from  one  end  of 
the  country  to  the  other,  by  any  person  in  virtue  merely  of  his 
being  a  citizen  of  the  United  States."  ^ 

One  may  appeal  to  an  author  in  the  character  of  a  jurist 
and  expositor  of  constitutional  law  as  it  is,  without  being 
obliged  to  defer  to  his  opinions  as  political  philosopher,  or 
guide  as  to  what  the  constitutional  law  ought  to  be.  In 
the  course  of  his  discussion  of  this  subject  Mr.  Pomeroy 
says,  §  211, — 

"  It  is  certainly,  however,  an  anomaly  that  the  general  govern- 
ment of  the  United  States  should  have  no  control  over  the  choice 
of  its  own  delegates  in  Congress  ;  that  it  should  be  powerless  to 
define  the  qualifications  of  congressional  electors.  It  must  be 
conceded  that  this  is  a  defect  in  our  organic  law  which  needs 
amendment ;  it  was  an  unnecessary  and  unfortunate  concession  to 
the  theory  of  state  sovereignty  and  independence.  One  code  of 
rules  should  certainly  prevail  throughout  the  country  to  regulate 
the  choice  of  representatives,  and  this  should  be  the  work  of  Con- 
gress, or  of  the  people  in  its  sovereign  capacity.  The  nation  should 
dictate  in  the  selection  of  its  own  legislators.  The  integrity  of  the 
separate  States  is  sufficiently  guarded  by  allowing  to  each  an  equal 
voice  in  the  Senate,  and  by  permitting  them  to  appoint  Senators 
and  to  control  the  selection  of  Presidential  electors ;  the  more 
national  branch   of  Congress,  that  which   comes  directly  from  the 

1  Mr.  Pomeroy's  note  to  §  209  is  of  special  interest,  as  giving  some  indi- 
cation of  the  author's  conception  of  the  theory  of  the  Reconstruction 
measures.  Referring  to  the  exclusive  power  of  the  States  over  the  elective 
franchise,  he  says,  "  I  need  hardly  say  that  I  am  speaking  here  of  those 
States  alone  which  remained  true  to  the  Union,  and  which  have  voluntarily 
acted  upon  the  question  of  suffrage.  I  do  not  include  those  States  which 
attempted  to  secede,  and  upon  wiiich  Congress  is  now  imposing  universal 
suffrage."  He  might  have  added,  While  Congress  is  at  the  same  time 
"  imposing  "  on  them  the  exercise  of  their  power,  as  States,  to  adopt  Amend- 
ments binding  on  all  the  States.  {Ante,  p.  256,  n.)  As  to  State  continuance, 
Mr.  Pomeroy,  in  (Appendix)  §  762,  declares  his  agreement  with  Chief  Justice 
Chase's  doctrine,  whatever  that  was,  in  Texas  v.  Wliite.     Ante,  p.  9. 


406  THE  PLACE   OF   SOVEREIGNTY. 

Political  Basis  of  the  Elective  Franchise. 

people,  should  be  entirely  under  the  management  of  the  one  body 
politic  which  is  represented  in  the  general  government."  ^ 

As  I  understand  the  word  anomaly^  it  cannot  be  applied 
to  a  fundamental  fact,  or  to  a  condition  in  the  existence  of 
anything  which  would  not  exist  at  all,  if  such  fact  or  con- 
dition did  not  exist.  A  naturalist  may  think  it  "  unfortu- 
nate and  unnecessary  "  that  the  animals  called  quadrupeds 
have  four  legs,  instead  of  having  five  or  three,  or  that  a 
dog  wags  his  tail,  instead  of  the  tail's  wagging  the  dog ; 
but,  as  natural  philosopher,  he  would  hardly  call  these 
"  anomalies."  That  Mr.  Pomeroy,  as  Judge  Story  had 
found  before  him,^  should  find  this  fact  in  the  political 
existence  of  the  republic  a  ver}^  inconvenient  one  for  his 
a  priori  theory  of  "  a  nation,"  is  natural  ;  but  that  does 
not  make  it  "an  anomaly."  The  fact  is  merely  one  in  a 
connected  array  of  facts  which  shows  that  sovereignty 
never  has  been  held  by  the  nation  or  people,  as  a  mass,  as 
Mr.  Pomeroy  and  Judge  Story  assumed.  The  whole  Con- 
stitution may  be  called  "  an  anomaly  "  in  view  of  the  same 
theory.^ 

Whoever  professes  to  expound  a  constitution,  as  jurist, 
should  expound  it  as  matter  of  existing  fact,  whether  he 
likes  the  fact  or  not.  As  citizen,  he  may  do  what  he  ean 
to  change  it,  by  argument ;  or  by  force,  if  he  prefers ;  tak- 
ing the  responsibility,  as  John  Brown  did,  with  his  musket 
at  his  slioulder. 

If  there  are  such  persons  as  "  delegates  in  Congress," 

1  Compare  ante,  pp.  340-345,  as  to  consequences  of  a  supposed  revolu- 
tionary change. 

2  See  ante,  p.  402. 

8  By  the  same  tlieory,  as  presented  by  Falck,  through  Mr.  Pomeroy 
{ante,  p.  114,  n.),  all  the  governments  that  ever  existed,  or  that  can  exist, 
were,  and  will  be  anomalies.  Mr.  Bateman,  in  treating  this  subject  very 
clearly  and  fully,  as  a  question  of  revolutionary  change,  in  his  work  on  the 
Poliucal  and  Constitutional  Law,  etc.,  on  p.  250,  has  given  special  atten- 
tion to  Mr.  Pomeroy 's  logic  in  this  instance. 


THEORY  OF   OUR   NATIONAL   EXISTENCE.  407 

Political  Basis  of  tlie  Elective  Eranchise. 

they  are  certainly  not  delegates  of  Congress  ;  not  delegates 
of  the  body  which,  as  delegates,  they  compose  ;  much 
less  can  they  be  delegates  of  the  government  of  which,  as 
such  body,  they  form  a  part.  The  author's  theory  blinds 
his  perception  of  the  fact  that  the  provision  which  he  calls 
"  an  unnecessary  and  unfortunate  concession  to  the  theory 
of  state  sovereignty  and  independence  "  could  not  be  such  a 
concession  :  simply  because  its  existence  as  part  of  the  Con- 
stitution depended  on  the  will  of  those  persons  who  held 
such  "state  sovereignty  and  independence,"  as  the  political 
peoples  of  States  in  Union ;  and  that,  if  such  persons  had 
not  chosen  so  to  act,  there  would  have  been  no  "  conces- 
sion "  and  no  constitution.^ 

The  nation  has  always  had  "  the  choice  of  its  own 
legislators."  Because,  except  as  there  were  States  in 
union,  to  hold  all  the  power  of  legislation  that  could  b^ 
held,  there  was  no  nation.  The  House  of  Representatives 
is  no  more  natio7ial  than  the  Senate,  or  the  President,  or 
the  judiciary  ;  and  all  together,  as  the  general  Government, 
are  no  more  national  than  the  State  governments,  because 
all  are  equally  necessary  to  a  national  existence. 

Even  the  new  Amendments  have  not  changed  this.  If, 
merely  in  consequence  of  these  Amendments,  there  is  now 
a  citizenship  of  the  United  States  in  a  new  sense  of  the 
term,  the  right  to  vote  is  not  a  characteristic  of  such  citi- 
zenship.^ 

But  the  argument,  in  the  opinion  of  the  court  in  these 
Election  cases,  is  founded  on  the  assumption  that,  in  vot- 

1  These  fundamental  facts  were  what  Story  was  obliged  to  reconcile  him- 
self to,  as  "  matters  of  regret,  and  dictated  by  a  controlling  moral  or  political 
necessity."  Ante,  p.  396,  n.  In  the  professor's  argument,  as  in  that  of  Story 
and  so  many  other  jurists,  the  Constitution  is  imagined  as  the  cause  of  its 
own  existence  and  continuance.     Compare  ante,  p.  95. 

2  Probably  there  are  some  who  have  a  different  opinion  on  this  point. 
For  illustration,  compare  an  article  by  Senator  George  F.  Edmunds  in  North 
Am.   Rev.  for  January,  1881,  p.  26.     Also  ante,  p.  246. 


408  THE   PLACE   OF   SOVEREIGNTY. 

Political  Basis  of  the  Kccoiistruction  Measures. 

ing  for  persons  to  make  any  representative  government,  the 
citizen  exercises  a  power  which  that  government  must  have 
a  right  to  protect  as  if  it  were  a  right  derived  from  that 
government. 

Tliis  was  one  among  the  confused  mixture  of  ideas 
brought  out  to  support  the  Reconstruction  measures,  when 
"  loyal "  citizens,  that  is,  citizens  who  Avere  opposed  to  the 
secession  of  their  own  State,  were  to  be  discriminated  as 
the  proper  constituents  of  the  State,  and,  as  such,  to  be 
maintained  by  the  general  Government  in  the  exercise  of 
the  elective  franchise  for  the  benefit  of  such  Government.^ 

In  its  historical  associations,  this  legislation  relative  to 
the  exercise  of  the  elective  franchise  is  part  of  the  Recon- 
struction measures,  and  the  construction  of  the  constitu- 
tional provision  by  the  court  in  these  cases  is  founded  on 
the  same  general  theory  upon  which  the  whole  Recon- 
struction policy  of  the  Government  was  based:  that  is, 
that  the  Government,  by  the  necessity  of  maintaining  itself 
as  a  sovereign,  must  have  the  power  to  treat  States  in  the 
Union  as  owing  duties  to  itself,  and  that  the  fulfilment  of 
such  duties  can  at  au}^  time  be  enforced  by  the  general 
Government,  by  its  direct  action  upon  the  political  people 
of  the  State. 

The  larger  portion  of  the  Reconstruction  legislation  has 
been  popularlj^  regarded  as  directed  only  to  the  circum- 
stances of  seceding  and  belligerent  slave-holding  States. 
But  this  part  of  that  legislation,  and  the  opinions  of  the 
Supreme  Court  in  these  cases,  disclose  the  fact  that  the 
power  exercised  in  those  measures,  if  it  existed,  still  exists, 
and  exists  without  any  reference  to  the  previous  political 
action  of  a  State,  and  that  the  power  to  compel  States  in 
the  Union  to  continue  the  existence  of  the  general  Govern- 
ment is  logicall}^  and  consistently  regarded  as  one  to  be 

1  Ante,  p.  252. 


THEORY  OP   OUR   NATIONAL  EXISTENCE.  409 

Effect  of  a  supposed  Change. 

employed  at  the  discretion  of  the  general  Government 
against  any  and  every  State. 

I  have  here  noticed  Mr.  Pomeroy's  development  of  his 
own  political  theory,  in  connection  with  the  decisions  of 
the  Supreme  Court  in  the  Maryland  and  Ohio  Election 
cases,  because,  taken  together,  they  show  the  difference  in 
political  importance  between  all  delegation  of  power  to  Con- 
gress (either  in  the  original  Constitution  or  an  Amendment) 
over  the  private  relations  of  the  inhabitants  of  the  coun- 
try, including  even  those  of  personal  status,  and  any  which 
transfer  to  the  general  Government  the  power  of  deter- 
mining the  citizens  who  shall  have  the  elective  franchise. 

While  the  States,  severally,  retain  the  power  of  deter- 
mining their  own  existence  as  a  political  people,  there  may 
be  States  in  union,  acting  by  and  through  the  general  Gov- 
ernment, as  their  agent,  and  the  republic  may  rightly  be 
called  "  the  United  States,"  though  Congress  may  still 
exercise  more  and  more  of  their  powers. 

But  whenever  the  existing  "  anomaly,"  as  Mr.  Pomeroy 
calls  it,  is  removed,  and  the  general  Government  determines 
its  own  continuance,  irrespectively  of  the  will  of  the  States 
in  union,  as  the  Supreme  Court,  substantially,  claims  it  is 
its  right  to  do,  even  now,  the  States,  as  political  bodies, 
holding  supreme  power  in  union,  will  have  ceased  to  exist, 
and  have  become  municipal  corporations,  under  a  law, 
written  more  or  less  clearly  in  the  Constitution,  but  de- 
pendent for  authority  on  the  will  of  the  general  or 
"  national "  Government. 

The  powers  which  the  corporations,  then  called  "  States," 
will  retain  will  not  be  sovereign  powers ;  because  all  self- 
maintaining  political  existence  will  belong  to  a  "  National  " 
government :  and  division  of  sovereignty  is  impossible. ^ 

1  It  has  been  said  of  the  English,  "  They  have  a  form  of  government,  but 
no  constitution."  When  this  change  takes  place,  the  same  may  be  said  of 
Americans.  Congress  will,  essentially,  be  in  the  same  position  as  is  tho 
Parliament. 


410  THE   PLACE   OF    SOVEREIGNTY. 

Tennessee  r.  Davis. 

Of  the  same  class  of  cases,  that  is,  cases  presenting  new 
claims  of  power  for  the  general  Government  as  against  the 
States,  not  founded  on  the  new  Amendments,^  is  the  case 
of  Tennessee  v.  Davis,  10  Otto,  257,  decided  by  the  Su- 
preme Court,  with  the  cases  last  cited,  at  the  October  Term, 
1879.  This  case  arose  on  the  provisions  of  Sect.  643  of 
the  Revised  Statutes  of  the  United  States,  which  declare 
that  — 

"  When  any  civil  suit  or  criminal  prosecution  is  commenced  in 
any  court  of  a  State  against  any  officer  appointed  under  or  acting 
by  authority  of  any  revenue  law  of  the  United  States,  now  or 
hereafter  enacted,  or  against  any  person  acting  under  or  by  au- 
thority of  such  officer,  on  account  of  any  act  done  under  color  of 
his  office  or  of  any  such  law,  or  on  account  of  any  right,  title,  or 
authority,  claimed  by  such  officer  or  other  person  under  any  such 
law,'-^  .  .  •  the  said  suit  or  prosecution  may,  at  any  time  before  the 
trial  or  final  hearing  thereof,  be  removed  for  trial  into  the  Circuit 
Court  next  to  be  holden  in  the  district  where  the  same  is  pending 
upon  the  petition  of  such  defendant  to  said  Circuit  Court."  ^ 

In  this  case,  the  defendant,  having  been  indicted  in  the 
State  Court  for  murder,  presented  his  petition  to  the  United 
States  Circuit  Court  for  removal  of  the  case,  under  this 
provision,  into  that  court,  alleging  that  the  killing  charged 
as  murder  was  an  act  of  self-defence,  he  being  at  the  time 

1  Ante,  p.  370. 

2  These  clauses  are  taken  from  the  Act  of  March  2,  18.33,  c.  57,  sect  3 : 
4  U.  S.  Statutes,  633.  The  history  of  this  Act,  passed  during  President 
Jackson's  administration,  is  given  in  the  opinion  of  the  court,  10  Otto,  268. 

^  This  extract  from  the  statute  is  as  given  in  tlie  caption  of  tlie  report. 
Tlie  passages  omitted  are  —  "or  is  commenced  against  any  person  liolding 
property  or  estate  by  title  derived  from  any  such  officer,  and  atfects  the 
validity  of  any  such  revenue  law  [this  is  from  the  Act  of  July,  18G0, 
c.  184,  sect.  (37  ;  14  U.  S.  Stat.  171]  ;  or  is  commenced  against  any  otHcer  of 
the  United  States  or  other  person  on  account  of  any  act  done  under  the  pro- 
visions of  Title  XXVI.,  '  Tlie  Elective  Franchise,'  or  on  account  of  any 
right,  title,  or  authority  claimed  by  said  officer  or  otlier  person  under  any  of 
the  said  provisions."  [This  is  from  the  Act  of  28th  February,  1871,  c.  92, 
sect.  16;  16  U.  S.  Stat.  438.1 


THEORY   OF   OTJR   NATIONAL   EXISTENCE.  411 

Tennessee  v.  Davis.     Opinion  of  the  Court. 

engaged  in  the  discharge  of  his  duties  as  an  officer  in  the 
United  States  revenue  service.  The  case  had  thereupon 
been  removed  to  the  Circuit  Court  for  trial  of  the  issue 
raised  by  the  indictment,  and  was  presented  in  the  Su- 
preme Court,  on  the  "  certificate  of  division  in  opinion 
between  the  judges  of  the  Circuit  Court  of  the  United. 
States  for  the  Middle  District  of  Tennessee." 

The  court  sustained  the  jurisdiction  of  the  Circuit  Court, 
and  denied  the  petition  to  remand  the  case  to  the  State 
court.     Justices  Clifford  and  Field  dissented. 

The  opinion  of  the  majority  was  delivered  b}'  Mr.  Justice 
Strong.  Independently  of  the  question  of  the  correctness 
of  the  judgment  itself,  this  opinion  may  be  considered  so 
far  as  it  is  an  exponent  of  political  doctrine.  With  this 
object,  some  of  the  more  striking  portions  are  here  noticed, 
with  the  preliminary  admission  that,  so  detached  from  the 
rest,  they  may  give  an  insufficient  view  of  the  court's 
position. 

After  some  introductory  considerations  the  court  pre- 
sents this  as  the  main  question  in  the  case  (/6.  262)  :  — 

"  Has  the  Constitution  conferred  upon  Congress  the  power  to 
authorize  the  removal  from  a  State  court  to  a  Federal  court  of  an 
indictment  against  a  revenue  officer  for  an  alleged  crime  against  the 
State,  and  to  order  its  removal  before  trial,  when  it  appears  that  a 
Federal  question  or  a  claim  to  a  Federal  right  is  raised  in  the  case, 
and  must  be  decided  therein  ?  " 

Taken  in  connection  with  the  succeeding  portions  of  the 
opinion,  this  passage  may  be  understood  as  intended  to  lay 
a  foundation  for  the  position,  asserted  afterwards,  that 
the  question  of  "  guilty  or  not  guilty  "  in  this  case  was  a 
question  arising  under  the  Constitution  and  laws  of  the 
United  States,  as  distinguished  from  a  question  under  the 
law  of  a  State,  and  that  therefore  the  case  was  one  within 
the  judicial  power  of  the  United  States.     But  for  this  the 


412  THE  PLACE   OF   SOVEREIGNTY. 

Tennessee  v.  Davis. 

court  offers  no  argument :  for  the  statement  of  the  position 
is  no  argument,  and  this  statement  is  contradicted  in  other 
parts  of  the  opinion,  where  the  issue  raised  in  the  case  is 
expressly  recognized  as  one  to  be  determined  by  State 
law.  It  appears  to  be  assumed  by  the  court,  without  any 
evidence  or  allegation  to  that  effect,  that  the  issue,  in  the 
State  court,  of  guilty  or  not  guilty,  would  be  identical  with 
the  question,  whether  the  officer  was  doing  a  lawful  act  in 
executing  the  revenue  law.  It  is  evident  that  the  case 
might  have  been  decided  in  the  State  courts,  on  the  facts, 
without  the  slightest  question  of  the  validity  of  the  revenue 
laws,  or  of  the  powers  of  the  revenue  officers  under  them. 
There  was  therefore  nothing  in  the  case,  as  it  stood,  to 
w'arrant  an  assertion  that  "  it  appears  that  a  Federal  ques- 
tion or  a  claim  to  a  Federal  right  is  raised  in  the  case  and 
must  be  decided." 

Here,  at  the  outset,  it  is  assumed,  as  it  is  indeed  more 
plainly  asserted  afterwards,  that  the  general  Government 
may,  or  even  should,  treat  each  several  State  as  unfriendly 
or  hostile  in  exercising  the  powers  which  indisputably 
belong  to  it  as  "  reserved  "  powers  ;  and,  further,  that,  for 
this  reason,  the  general  Government  may  take  upon  itself 
the  judicial  determination  of  any  legal  relations  depend- 
ing on  those  powers,  when  the  persons  who  sustain  those 
relations  are  persons  having  rights  and  duties  under  "  Fed- 
eral "  law. 

The  court  proceeds  to  say,  — 

"  A  more  important  question  can  hardly  be  imagined.  Upon  its 
answer  may  depend  the  possibility  of  the  general  government's  pre- 
serving its  own  existence.  As  was  said  in  Martin  v.  Hunter  (1 
Wheat.  3G3),  '  the  general  government  must  cease  to  exist  when- 
ever it  loses  the  power  of  protecting  itself  in  the  exercise  of  its 
constitutional  powers.'  It  can  act  only  through  its  officers  and 
agents,  and  they  must  act  within  the  States.  If,  when  thus  acting, 
and  within  the  scope  of  their  authority,  those  officers  can  be  ar- 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  413 

Tennessee  v.  Davis.     Opinion  of  the  Court. 

rested  and  brought  to  trial  in  a  State  court,  for  an  alleged  offence 
against  the  law  of  the  State,  yet  warranted  by  the  Federal  au- 
thority they  possess,  and  if  the  general  government  is  powerless  to 
interfere  at  once  for  their  protection,  —  if  their  protection  must  be 
left  to  the  action  of  the  State  court  —  the  operations  of  the  gen- 
eral government  may  at  any  time  be  arrested  at  the  will  of  one  of 
its  members."  ^ 

In  these  sentences  appears  again  that  political  doctrine 
which,  taken  as  axiomatic,  has  been  the  foundation  of  some 
other  opinions  of  the  same  court,  —  that  the  general  Gov- 
ernment is  a  government  of  that  nature  that  it  may  or 
must,  as  a  possessor  of  some  sovereign  powers,  make  its 
own  existence  its  end,  and  employ  any  means  it  may  think 
essential  to  that  end.  The  citation  from  Marshall  does  not, 
however,  support  this,  because  it  is  therein  recognized  that, 
except  as  its  powers  may  be  constitutional,  that  is,  intrusted 
to  it  by  the  law  of  a  political  superior,  they  are  not  powers 
of  a  government.  In  these  sentences  of  the  opinion,  it  is 
assumed  that  any  power  claimed  by  the  Government  in  pro- 
tecting itself  as  sovereign  is  "  constitutional  "  power.  There- 
fore, the  position  taken  is  that  the  power  is  not  measured 
by  the  Constitution,  but  the  Constitution  is  construed  by 
the  assumed  power. 

In  these  sentences  of  the  opinion,  something  is  again 
taken  for  granted  which  had  not  been  shown  by  any  record 
before  the  court,  that  is,  that  the  act,  the  character  of 
which  the  State  proposed  to  judge  by  its  own  law,  Avas 
an  act  warranted  by  "  Federal  authority." 

But  if  this  was  the  ground  for  asserting  the  jurisdiction 
of  the  United  States  Circuit  Court  as  against  the  State 
Court,  it  was  absurd  for  the  Circuit  Court  to  proceed  to 
try  the  case  as  an  issue  of  guilty  or  not  guilty  under  the 
State  law.     The  Supreme  Court  had  made  its  decision  on 

1  Compare  a  similar  expression  in  Judge  Swayne's  opinion  in  the 
Slaughter  House  Cases,  ante,  p.  375. 


414  THE    PLACE    OF    SOVEREIGNTY. 

Tennessee  v.  Davis. 

the  question  of  removal,  on  the  ejrouiid  that  the  act  in 
question  was  justified  by  the  "Federal  law." 
The  court  proceeds  to  say,  — 

"  The  legislation  of  a  State  may  be  unfriendly.  It  may  affix 
penalties  to  acts  done  under  the  immediate  direction  of  the  national 
government,  and  in  obedience  to  its  laws.  It  may  deny  the  au- 
thority conferred  by  tliose  laws.  Tlie  State  Court  may  administer, 
not  only  the  laws  of  the  State,  but  equally  Federal  law,  in  such 
a  manner  as  to  paralyze  the  operations  of  the  government.  And 
even  if  after  trial  and  final  judgment  in  the  State  Court  the  case 
can  be  brought  into  the  United  States  Court  for  review,  the  officer 
is  withdrawn  from  the  discharge  of  his  duty  during  the  pendency 
of  the  prosecution,  and  the  exercise  of  acknowledged  Federal 
power  is  arrested." 

Whatever  legislation,  on  the  part  of  a  State,  was  possible 
was  either  constitutional  or  unconstitutional.  If  the  latter, 
it  was  simply  void  as  law.  But  if  so  unconstitutional 
and  void  as  law,  it  could  be  made  so  to  appear  only  through 
the  decision  of  cases  as  they  had  arisen  in  the  courts,  and 
were,  as  cases,  subject  to  the  national  judiciary.  As 
political  action,  such  legislation,  so  far  as  the  general 
Government  was  concerned,  was  simply  null ;  that  is,  the 
Government  could  take  no  notice  of  it  as  being  either 
friendly  or  unfriendly. 

This  may  have  been  an  "element  of  weakness"  in  the 
Constitution,  that  is,  a  bad  political  arrangement.  But 
neither  the  Supreme  Court,  nor  any  other  branch  of  the 
general  Government,  had  any  right  to  give  itself  trouble 
on  that  account. 

If,  on  the  other  hand,  the  State  legislation  was  constitu- 
tional, it  was  for  the  general  Government  to  keep  its  hands 
off;  and  all  that  the  judiciary  liad  to  do  was  so  to  declare, 
whenever  the  question  should  arise  in  a  case  at  law,  what- 
ever might  be  the  consequences. 

The  court  proceeds  to  enunciate  as  political  doctrine :  — 


THEORY   OF   OUR   NATIONAL   EXISTENCE,  415 

Tennessee  v.  Davis.     Opinion  of  the  Court. 

"  We  do  not  think  such  an  element  of  weakness  is  to  be  found 
in  the  Constitution.  The  United  States  is  a  government  with  au- 
thority extending  over  the  whole  territory  of  the  Union,  acting  upon 
the  States  and  upon  the  people  of  the  States."  -^ 

Here,  as  in  some  other  instances,  the  court  allows  itself 
to  found  an  argument  upon  a  misuse  of  words ;  that  is,  a 
use  identifying  the  general  Government  with  those  States 
which,  in  their  union,  are  the  sovereign.  In  doing  this  it 
arrogates  to  the  persons  composing  that  government  the 
character  of  sovereignty,  and  denies  that  character  to  the 
several  States  which  i»  union  are  "  the  United  States."  "^ 
Whatever  ma}'-  be  the  record  to  be  left  by  contemporane- 
ous history,  it  was  a  misrepresentation  of  past  history  to 
say  that  this  government  had  had  any  authority  whatever, 
acting  ujion  the  States  as  its  subjects.^ 

And  in  continuing  :  — 

"  While  it  is  limited  in  the  number  of  its  powers,  so  far  as  its 
sovereignty  extends,  it  is  supreme.  No  State  government  can  ex- 
clude it  from  the  exercise  of  any  authority  conferred  upon  it  by  the 
Constitution,  obstruct  its  authorized  officers  against  its  will,  or  with- 
hold from  it,  for  a  moment,  the  cognizance  of  any  subject  which 
that  instrument  has  committed  to  it." 

The  passage  here  cited  may  seem  commonplace  enough  ; 
but  it  is  itself  contradictory  to  the  position  tal^n  in  the 
preceding  sentences ;  for  it  is  an  admission  that,  like  the 
State  governments^  the  .general  Grovernment  is  bound  and 
limited  by  the  Constitution,  as  law  proceeding  from  some 
person  or  persons  who  are  not  identified  with  either  of 
these  governments. 

In  offering  this  truism  as  its  solution,  the  court  has  here 
again,  as  once  or  twice  before,  simply  begged  the  ques- 

1  See  ante,  p.  377,  n.  2.,  Waite,  Cii.  J.,  in  United  States  v.  Cruikshank. 

2  Compare  ante,  p.  384. 
^  Compare  aiite,  Cli.  IV. 


416  THE   PLACE   OF   SOVEREIGNTY. 

Tennessee  v.  Davis. 

tion,  —  whether  the  trial  of  a  charge  of  murder,  under  the 
State's  law  in  the  case  of  a  revenue  officer,  is  withholding 
from  the  general  Government  "  the  coonizance  committed 
to  it  by  the  Constitution."  It  is  assumed  tliat  the  enfor- 
cing of  the  simplest  law  of  a  State,  —  the  law  for  the  pro- 
tection of  the  life  of  its  inhabitants  —  is  hostile,  and  in 
conflict  with  the  use  of  powers  granted  to  the  Govern- 
ment by  the  States  in  union,  so  far  as  it  may  apply  to 
officers  of  the  general  Government  who  may  be  within  its 
territorial  jurisdiction. 

If  the  judiciary  proposes  only  to  carry  into  effect  the 
Constitution  as  law,  it  is  bound,  as  is  every  other  branch 
of  the  Government,  to  take  the  law  as  given  to  it.  But  in 
this  opinion  the  court  virtually  denies  that  the  three 
branches  of  the  general  Government  are  under  law.  This 
it  had  done  already  by  asserting  that  they,  as  a  govern- 
ment, and  "  the  United  States  *  are  one  and  the  same 
personality,  while  the  States  are  under  a  law  administered 
by  this  Government.  But  the  same  idea  is  advanced  in 
another  part  of  the  opinion,  in  which  the  court  has  pro- 
duced an  original  conception  at  least,  if  it  cannot,  by  the 
nature  of  things,  be  a  discovery,  by  making  the  supremacy 
of  the  law,  that  is,  of  the  author  of  the  law,  the  supremacy' 
of  the  agent. 

After  slating,  ib.  263-265,  its  view  of  the  extent  of  the 
judicial  power,  the  court  says,  p.  265  :  — 

"  As  we  have  already  said,  such  a  jurisdiction  is  necessary  for  the 
preservation  of  the  acknowledged  powers  of  the  government.  It  is 
also  essential  to  a  uniform  and  consistent  administration  of  the  na- 
tional laws.  It  is  required  for  the  preservation  of  that  su- 
premacy which  the  Constitution  gives  to  the  general  Government 
by  declaring  that  the  '  Constitution  and  laws  of  the  United  States 
made  in  pursuance  thereof,  and  the  treaties  made  or  which  shall  be 
made  under  the  authority  of  the  United  States  shall  be  the  supreme 
law  of  the  laud,  and   the  judges  in  every  State  shall  be  bound 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  417 

Tennessee  v.  Davis.     Opinion  of  tlie  Court. 

thereby,  anything  in  the   Constitution  or  laws  of  any  State  to  tlie 
contrary  notwithstanding.'  " 

It  is  not  easy  to  see  what  force,  as  argument  on  the  ques- 
tion before  it,  the  court  could  find  in  this  self-contradictory 
statement,  unless  it  is  understood  as  equivalent  to  saying 
that  the  general  Government  is  identical  with  "  the  United 
States,"  that  is,  with  the  actual  sovereign  from  whom  the 
"  Constitution  and  laws  of  the  United  States  "  proceed, 
and  that,  therefore,  all  its  powers  are  original  in  itself, 
as  the  supreme  law-giver,  while  all  others,  that  is,  those 
held  by  the  States,  are  held  under  a  law  proceeding  from 
those  powers,  the  application  of  which  is  to  be  decided  by 
the  judicial  function  of  this  Government.^ 

The  court  next  proposes  to  drag  in  "  the  founders,"  with 
their  intentions,  even  to  justify  that  ijetitio  principii  which 
characterizes  this  whole  opinion  :  — 

"  The  founders  of  the  Constitution  could  never  have  intended  to 
leave  to  the  possibly  varying  decisions  of  the  State  courts  what  the 
laws  of  the  government  it  established  are,  what  rights  they  confer, 
what  protection  shall  be  extended  to  those  who  execute  them.  If 
they  did,  where  is  the  supremacy  over  those  questions  vested  in  the 
government  by  the  Constitution  ?  If,  whenever  and  wherever  a 
case  arises  under  the  Constitution  and  laws  or  treaties  of  the 
United  States,  the  national  government  cannot  take  control  of 
it,  whether  it  be  civil  or  criminal,  in  any  stage  of  its  progress,  its 
judicial  power  is,  at  least,  temporarily  silenced,  instead  of  being  at 
all  times  supreme." 

Beyond  this  surmise  as  to  the  intention  of  "  the  founders  " 
no  argument  is  offered  to  show  that  a  personal  right,  such 
as  the  right  of  self-defence,  of  "  those  who  execute  the 
laws  of  the  Government,"  is  one  conferred  by  "  its  laws," 

^  This  is  an  illustration  of  the  consequences  which  have  been  described 
(ante,  pp.  341-343,  851,  352)  as  legitimately  following  from  the  theory  of  the 
Constitution's  existing  by  the  will  of  the  nation  as  a  mass,  if  made  good  by 
revolutionary  change. 


418  THE   PLACE   OF   SOVEREIGNTY. 

Tennessee  v.  Davis. 

or  that  their  "  protection "  as  citizens  does  not,  under 
the  Constitution,  belong  exclusively  to  the  State.  The 
contrary  is  indirectly  affirmed  by  the  admission,  in  the 
close  of  the  opinion,  that  in  the  Federal  Court  the  ques- 
tion of  criminality  must  be  decided  by  the  State  law. 

Throughout  this  opinion,  the  court  presents  the  divisi- 
bility of  sovereignty  as  a  fundamental  truth  :  — 

"  The  argument  so  much  pressed  upon  us,  that  it  is  an  invasion 
of  the  sovereignty  of  a  State  to  withdraw  from  its  courts  into  the 
courts  of  the  general  Government  the  trial  of  prosecutions  for 
alleged  offences  against  the  criminal  laws  of  a  State,  even  though 
the  defence  presents  a  case  arising  out  of  au  Act  of  Congress, 
ignores  entirely  the  dual  character  of  our  government.  It  assumes 
that  the  States  are  completely  and  in  all  respects  sovereign.  But 
when  the  national  government  was  formed,  some  of  the  attributes 
of  State  sovereignty  were  pai-tially,  and  others  wholly,  surrendered, 
and  vested  in  the  United  States."  ^ 

On  page  271,  after  a  review  of  decisions  affirming  the 
power  to  remove  cases  when  a  question  arises  of  the 
validity  of  a  right  given  hy  a  laio  of  Congress,  the  court 
says,  — 

"  It  ought,  therefore,  to  be  considered  as  settled  that  the  con- 
stitutional powers  of  Congress  to  authorize  the  removal  of  criminal 
cases  for  alleged  offences  against  State  laws  from  State  Courts  to 
the  Circuit  Courts  of  the  United  States,  when  there  arises  a  Federal 
question  in  them,  is  as  ample  as  its  power  to  authorize  the  removal 
of  a  civil  case." 

The  citation  of  the  cases  to  prove  this  proposition  was 
entirely  superfluous.  Here,  as  throughout  the  opinion,  the 
court  assumes  that  the  character  of  the  act  charged  was 
to  be  judged  by  a  "  Federal "  law,  that  is,  a  law  deriving 

1  "Why  did  not  the  court  say,  outright  —  to  the  Government  ?  As  shown 
in  the  fourth  chapter  {ante,  p.- 1.36),  the  United  States  were  tlie  grantors,  so 
far  as  there  were  grantors,  and  not  grantees.  Tlie  idea  of  a  "partial" 
surrender  of  an  attribute  of  sovereignty  is  a  new  development  in  the  theory 
of  divisibihty  of  powers. 


THEOET  OF   OUR   NATIONAL  EXISTENCE.  419 

Tennessee  v.  Davis.    Opinion  of  the  Court. 

its  force  from  the  powers  held  by  the  general  Government. 
But  this  was  the  proposition  to  be  proved. 

And  then,  on  the  same  page,  the  court  proceeds  to  con- 
.tradict  its  own  position,  by  asserting  that  the  Circuit 
Court  will  try  the  case  by  the  law  of  the  State. 

"  The  imaginary  difficulties  and  incongruities  supposed  to  be  in 
the  way  of  trying  in  the  Circuit  Court  an  indictment  for  an  alleged 
offence  against  the  peace  and  dignity  of  a  State,  if  they  were  real, 
would  be  for  the  consideration  of  Congress.-^  But  they. are  unreal. 
.  .  .  The  Circuit  Courts  of  the  United  States  have  all  the  ap- 
pliances which  are  needed  for  the  trial  of  any  criminal  case.  They 
adopt  and  apply  the  laws  of  the  State  in  civil  cases,  and  there  is  no 
more  difficulty  in  administering  the  State's  criminal  law.  They 
are  not  foreign  courts.^  The  Constitution  has  made  these  courts 
within  the  States  to  administer  the  laws  of  the  States  in  certain 
cases,  and  so  long  as  they  keep  within  the  jurisdiction  assigned  to 
them,  their  general  powers  are  adequate  to  the  trial  of  any  case." 

Here,  again,  it  is  assumed  that  the  Federal  courts  are 
within  their  jurisdiction  in  such  instances,  while  immedi- 
ately the  court  reasserts  the  divisibility  of  sovereignty, 
and  speaks  of  the  powers  of  the  States  as  "  sovereign  " :  — 

"  The  supposed  anomaly  of  prosecuting  off'enders  against  the 
peace  and  dignity  of  a  State,  in  tribunals  of  the  general  govern- 
ment, grows  entirely  out  of  the  division  of  powers  between  that 
government  and  the  government  of  a  State  ;  that  is,  a  division  of 
sovereignty  over  certain  matters.^  When  this  is  understood  (and 
it  is  time  it  should  be),  it  will  not  appear  strange  that  even  in  cases 
of  criminal  prosecutions  for  alleged  offences  against  a  State,  in 

1  Here  is  another  contradiction.  If  tliis  difficulty  is  "  real,"  that  is, 
founded  on  the  Constitution,  Congress  couhl  do  nothing  about  it. 

2  The  whole  argument  had  been  that  the  States,  and  especially  their 
courts,  were  to  be  regarded  as  foreign  and  hostile  to  the  general  Govern- 
ment. But  how  can  one  of  two  parties  be  foreign  to  the  other,  if  this  other 
is  not  equally  foreign  to  the  first  ? 

3  Tiiat  is,  apparently,  that  tliere  is  a  division  of  sovereignty  over  one 
and  the  same  subject,  or  class  of  relations,  in  harmony  with  the  expression 
"  partial  sovereignty."     {Ante,  p.  418.) 


420  THE  PLACE  OF   SOVEREIGNTY. 

Tennessee  v.  Davis.     Clifford,  J.,  dissenting. 

which  arises  a  defence  under  United  States  law,  the  general  gov- 
ernment should  take  cognizance  of  the  case,  and  try  it  in  its  own 
courts,  according  to  its  own  forms  of  proceeding." 

While,  in  this  same  opinion,  the  doctrine  of  the  division 
or  partition  of  sovereignty  between  the  States  and  the 
general  Government  is  proclaimed,  it  is  almost  in  the  same 
breath  declared  that  any  of  these  powers  held  by  the 
States  may  at  any  time  be  subject,  in  exercise,  to  the  other 
sovereign ,  powers  held  by  the  general  Government.  If 
this  can  possibly  be  "  understood,"  it  is  time  somebody 
should  explain.  Why  should  not  the  court  have  done  this 
service  on  this  occasion,  if  the  court  understands  it  ? 

The  dissenting  opinion,  written  by  Mr.  Justice  Clifford, 
occupying  pp.  272-301,  consists  largely  of  citations  from 
earlier  decisions.  But  it  was  hardly  worth  so  much  trouble 
to  prove  a  negative ;  considering  that  the  proof  of  the 
affirmative  proposition  had  fallen  to  the  majority,  and  that 
their  "  opinion  "  exhibited  only  a  logical  failure. 

In  this  dissenting  opinion  (i5.  281)  it  is  said:  — 

"  Neither  the  Constitution  nor  the  Acts  of  Congress  give  a 
revenue  officer  or  any  other  officer  of  the  United  States  an  immunity 
to  commit  murder  in  a  State,  or  prohibit  the  State  fi'om  executing 
its  laws  for  the  punishment  of  the  offender.  Unquestionable  ju- 
risdiction to  try  and  punish  offenders  against  the  authority  of  the 
United  States  is  conferred  upon  the  circuit  and  district  courts, 
but  the  acts  of  Congress  give  these  courts  no  jurisdiction  whatever 
of  offences  committed  against  the  authority  of  a  State.  Criminal 
homicide,  committed  in  a  State,  is  an  offence  against  the  authority 
of  the  State.  .  .  .  INIatters  of  fact  are  not  in  dispute.  .  .  .  Nobody 
before  ever  pretended  that  such  an  offence  ever  was  or  could  be 
defined  by  an  act  of  Congress  as  an  offence  against  the  Federal 
authority,  —  that  the  Circuit  Court  or  any  other  Federal  Court  has 
or  ever  had  any  jurisdiction  of  such  a  case  to  try  or  sentence  such 
an  offender  for  such  an  offence." 

Before  the  era  of  Reconstruction,  it  had  been  the  will 
of  the  sovereign  (i.e.  of  the  States  united),  under  whom 


THEORY   OF   OUR    NATIONAL  EXISTENCE.  421 

The  political  Question  involved. 

all  law  existed  in  tliis  country,  that,  in  each  State,  the  citi- 
zen should,  in  some  relations,  be  bound  by  and  receive 
protection  from  law  proceeding  from  powers  intrusted 
["  reserved  "]  to  each  State  separately,  and,  in  other  rela- 
tions, be  bound  by  and  receive  protection  from  a  law  pro- 
ceeding from  powers  intrusted  [delegated]  to  a  general 
Government. 

The  laws  proceeding  from  the  holder  of  either  set  of 
powers  might  be  so  framed,  or,  however  framed,  so  admin- 
istered, intentionally  or  unintentionally,  as  to  work  a  failure 
of  justice  in  relations  dependent  on  those  powers. 

The  persons  who  might  suffer  from  such  a  failure  of 
justice,  in  relations  depending  on  one  of  these  sets  of 
powers,  might  be  persons  sustaining  relations  depending 
on  the  other  set  of  powers. 

The  will  of  the  sovereign,  however,  had  been  that  the 
holders  of  these  two  sets  of  powers  should  be  reciprocally 
independent  in  their  use  of  these  powers.  The  holder  of 
neither  set  of  powers  had  any  right  to  interfere  with  the 
framing  or  the  administration  of  the  laws  dependent  on 
the  action  of  the  holder  of  the  other  powers. 

Whether  this  was  a  good  political  arrangement,  or  not, 
was  not  a  question  for  anybody  but  the  sovereign  to  con- 
sider. For  any  one  else,  it  was  a  speculative  question  ;  or 
was  a  practical  question  only  as  attempted  revolution 
might  make  it  so. 

Sovereignty  was  distributed  in  exercise ;  it  was  not 
divided  in  possession.^ 

It  was  the  same  sovereign  who  held  the  powers  "  re- 
served" to  the  States  sepamtely,  to  be  exercised  by  their 
governments,  and  the  powers  delegated  to  the  general  Gov- 
ernment. 

Hence,  the  latter  could  have  no  right  to  distrust  the 

1  Arite,  p.  139. 


422  THE  PLACE   OF   SOVEREIGNTY. 

The  political  Doctrine  involved. 

State  governments,  as  holders  of  power,  much  less  have 
any  "  supremacy  "  over  them.^ 

The  citizen,  under  the  laws  of  the  State  government, 
was  under  the  protection  and  the  obligations  of  laws 
derived  from  the  only  sovereign — the  States  united  —  as 
essentially  as  when  under  the  laws  of  the  general  Gov- 
ernment. 

This  was  the  fundamental  fact ;  and  the  general  Gov- 
ernment had  to  accept  the  position  in  regard  to  each  State 
government  as  long  as  the  /State  was  a  member  of  the 
Union. 

What  consequences  to  a  State  would  follow  from  a 
misuse  of  the  powers  "  reserved  "  to  it  as  a  State  of  the 
Union,  or  what  use  should  be  considered  a  use  inconsistent 
with  its  existence  as  a  State  of  the  United  States,  was  a 
political  question,  which  could  not  be  decided  by  the  exer- 
cise of  any  function  of  the  general  Government,  as  organ- 
ized under  the  Constitution.^ 

This  purely  political  question  could  be  decided  only  by 
the  sovereign,  the  person  or  persons  holding  sovereignty 
as  a  unit  by  right  above  law  ;  that  is,  by  the  States,  deter- 
mining for  themselves  their  own  identity  in  union,  mu- 
tually recognizing  one  another.^  The  general  Government, 
as  holder  of  delegated  powers,  could  not,  by  its  ordinary 
action  under  the   Constitution,  decide  this  question.*     Its 

1  If  either  the  general  Government  or  the  States  could  claim  "su- 
premacy "  over  the  other,  it  would  be  strange  that  it  should  be  that  one 
which  not  only  professed  to  be  governed  by  a  written  law  prescribed  by  the 
other,  as  a  union,  but  which  had  no  independent  personal  existence,  being 
constantly  dependent  on  the  renewing  ac^tion  of  that  other. 

'-^  Unless,  perhaps,  a  "  political  department "  has  been  developed.  Comp. 
ante,  pp.  10,  65. 

3  As  the  original  Thirteen  had  determined  the  question  at  the  first. 
Ante,  p.  283,  n. 

*  In  the  case  occurring  in  18G1,  eleven  States  had  so  completely  settled 
this  by  withdrawing  their  Senators  and  Representatives,  to  say  nothing  of 
other  action,  that,  though  the  theory  and  its  consequences  were  not  then  dis- 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  423 

The  political  Doctrine  tested. 

action  would  commence  when  the  political  question  had 
been  decided  against  the  continued  existence  of  a  State ; 
when  it  became  territory  under  the  sole  dominion  of  the 
(other)  States  continuing  in  their  union. ^ 

In  all  the  cases  which  have  been  cited  in  tliis  essay  the 
Supreme  Court  construes  the  Constitution  with  the  idea 
that  sovereign  powers  are  not  so  held,  as  a  unit,  by  the 
States  in  union,  and  distributed  to  the  State  governments 
and  a  general  government,  but  are  divided  ;  some,  as  sov- 
ereign powers,  belonging  to  a  general  government  (or  a 
supposed  "  United  States  "  or  "  Union  "),2  and  others  as 
sovereign  powers  also,  belonging  to  the  States  severally. 

According  to  the  theory  of  our  national  existence  main- 
tained in  this  essay,  there  neither  w\as  nor  could  be,  in  the 
nature  of  things,  a  division  of  the  powers  of  sovereignty, 
either  between  the  State  governments  and  the  general 
Government,  or  between  the  United  States  (i.  e.,  the 
States  united)  and  the  States  severally.  All  sovereignty 
was  held,  as  a  unit,  by  the  States  in  union,  —  the  United 
States.^ 

The  essential  importance  of  the  distinction  between 
such  a  distrilnition  of  sovereign  powers,  and  a  division  of 
sovereignty  (e\'en  in  theory),  appears  in  the  arguments  of 
the  Supreme  Court,  in  the  cases  cited  in  this  chapter,  for 
giving  the  possessor  of  one  set  of  sovereign  powers  (the 
general  Government,  or  a  supposed  "  United  States,"  or 
"  Union  ")  the  right  to  control  the  administration  of  laws 

cerned,  the  practical  course  taken  was  the  same  as  if  the  other  States,  in 
convention,  had  formally  declared  that  they  only  were  the  United  States. 

If  the  theory  advanced  in  the  Election  Cases,  ante,  p.  385,  that  senators 
and  members  of  the  House  are  elected  as  members  of  a  "  National  "  govern- 
ment through  suffrages  controlled  by  the  same  government,  is  correct,  it 
would  seem  to  follow  that  the  senators  and  representatives  from  the  eleven 
States  might  have  remained  in  the  exercise  of  their  functions  until  their 
terms  had  expired,  even  while  the  States  from  which  they  had  been  elected 
were  declared  belligerent  States  as  against  the  government  of  which  they 
were  a  part. 

■1  Ante,  p.  145.  2  ^^te,  p.  102.  3  Ante,  p.  140. 


424  THE  PLACE   OF   SOVEREIGNTY. 

The  Position  of  tlie  Court  in  these  Cases. 
. • . . 

proceeding  from  the  possessors  of  the  other  set  of  powers, 

—  also,  by  the  theory,  sovereign  powers,  — the  States. 

Although  it  is  evident  that  the  argument,  from  the 
nature  of  sovereignty,  applies  just  as  much  in  favor  of  the 
powers  held  by  the  States,  if  they  are  sovereign  powers, 
as  in  favor  of  those  held  by  the  general  Government,  it  is  in 
the  cases  here  referred  to  assumed  as  a  doctrine  of  constitu- 
tional law  that  the  latter,  in  view  of  its  own  existence  as 
sovereign,  must  assert  the  relations  existing  under  its 
powers  at  the  expense  of  every  other  possessor  of  powers 
equally  sovereign,  whenever  the  relations  under  each  in- 
volve the  same  persons.^ 

The  political  doctrine  declared  by  the  court  in  justify- 
ing its  decision  in  this  case,  Tennessee  v.  Davis,  ■ —  that  the 
general  Government,  as  a  superior,  may,  through  laws  of 
Congress,  always  interfere  to  prevent  the  administration  of 
State  laws  by  State  Courts,  in  view  of  possible  conse- 
quences to  persons  in  the  employ  of  the  general  Govern- 
ment, and  of  possible  loss  of  their  services,  had  no  support 
in  the  history  of  this  country  before  the  Reconstruction 
era.^ 

Whatever  else  may  be  thought  of  the  decision  of  the 

1  The  toleration  wliich  this  assumption  has  received  is  measurably  ascrib- 
able  to  a  popular  idea  that  those  attributes  of  sovereign  rule  which  create 
legal  relations  over  a  wider  expanse  of  territory,  and  such  as  are  recognized 
in  international  transactions,  are  grander,  more  majestic,  and  more  essentially 
sovereifjii  than  those  which  create  such  legal  relations  as  exist  in  all 
communities,  great  or  small,  involving  rights  and  obligations  in  respect  to 
life,  liberty,  and  property.  An  illustration  of  this  may,  I  think,  be  found 
in  Mr.  .Justice  Bradley's  argument  for  the  supremacy  of  a  "national  "  gov- 
ernment in  the  Legal  Tender  Cases,  12  Wall.  555.     (See  poitt,  p.  4t'Vl.) 

2  If  the  personal  riglits  to  life,  libert}',  and  property  of  otiicers  of  tlie 
general  government  are  to  rest  upon  laws  enforceable  as  if  they  derived 
their  autliority  from  the  "  Federal "  or  "  National "  government,  there  is 
now  an  introduction,  for  the  first  time,  into  American  jurisprudence  of  laws 
of  personal  extent,  as  opposed  to  laws  of  territorial  extent,  — a  system  wliich 
characterized  Europe  during  the  Middle  Ages,  and  is  now  exemplified  in  tlie 
extra-territorial  jurisdiction  over  foreigners  of  European  race  which  is  still 
maintained  in  Japan,  China,  etc 


THEORY   OF   OUR  NATIONAL   EXISTENCE.  425 

No  Revolution  yet  recognized  by  the  Judiciary. 

court  in  this  case,  it,  like  others  hereinbefore  cited,i 
proves  experimentally  the  futility  of  the  theory  of  a 
division  of  sovereignty.  In  this  opinion  the  theory  is 
asserted,  and  "  supremacy  "  at  the  same  time  claimed,  for 
one  of  the  supposed  holders  of  sovereign  power  over  the 
other  in  the  exercise  of  his  share  of  sovereign  power. 

From  the  opinions  delivered  in  the  cases  cited  in  this 
chapter  and  others,  also  relating  to  the  powers  claimed  by 
the  general  Government,  some  passages  might  be  selected 
for  notice  in  a  political  essay  as  making  for  that  govern- 
ment those  claims  which  I  have  pointed  out  as  indicia  of 
that  theorj'"  which  makes  it  the  representative  of  the  nation 
as  a  mass,  instead  of  being  the  representative  of  the  States 
united.2 

But,  without  professing  to  have  made  an  exhaustive 
examination  of  all  the  opinions  bearing  on  our  public  law 
in  the  cases  reported  in  the  Supreme  Court  during  the 
period  in  question,  I  think  it  is  safe  to  say  that,  whatever 
inferences  as  to  the  future  powers  of  the  general  Govern- 
ment maybe  drawn  from  the  <\.Q,i\X(i\  j  udgments  of  the  court 
since  the  war,  taken  simply  as  jyrecedents,  or  whatever 
expressions  as  to  the  position  of  that  government,  rela- 
tively to  the  States,  may  be  found  in  the  opinions,  it  will 
appear  to  any  inquirer  that  no  positive  discrimination  of  a 
revolutionary  political  change  has  been  made  by  any 
member  of  the  court. 

Even  from  the  language  of  those  justices  who  have 
gone  the  furthest  in  asserting  the  powers  of  the  general 
Government  as  against  the  "  reserved "  powers  of  the 
States,  it  will  probably  be  understood  that,  whatever  poli- 
tical condition  the  Supreme  Court  may  have  accepted  as 
the  basis  of  its  decision,  they  have  in  all  their  opinions 
stated  it  as  one  continuously  existing  from  the  time  of  the 
adoption  of  the  Constitution  in  1787. 

1  Ante,  p.  301.  2  Ante,  pp.  3il-3i5. 


426  THE   PLACE   OF   SOVEREIGNTY. 

Tlie  Legal  Tender  Cases. 

This  appears  not  only  from  their  own  several  references 
to  the  original  formation  of  the  Government,  and  frequent 
appeals  to  the  views  or  intentions  of  "  the  fraraers,"  but 
also  from  their  reliance  on  earlier  judicial  opinions,  and 
especially  on  some  of  Chief  Justice  Marshall's,  as  contain- 
ing the  political  doctrine  on  which  they  rely. 

The  question  presented  in  the  Legal  Tender  Cases,  12 
Wall.  457,^  had  no  immediate  connection  with  the  public 
or  private  relations  affected  by  the  three  Amendments. 
But  the  opinions  delivered  on  the  rendition  of  the  judg- 
ment may  be  noticed  in  their  bearing  on  the  question  of  a 
possible  revolutionary  change,  from  the  fact  that  the  de- 
cision of  the  majority  sustaining  the  powers  claimed  for 
Congress  is,  in  the  opinion  of  the  court,  and  in  Mr.  Jus- 
tice Bradley's  separate  opinion,  based  upon  a  political 
theory,  without  any  reference  to  any  clauses  in  the  Con- 
stitution itself,  as  law,  determining  the  powers  of  the 
general  Government. 

It  was  said  in  this  case  by  Mr.  Justice  Strong,  deliver- 
ing the  opinion  of  the  court  (12  Wall.  531),  — 

"  Nor  can  it  be  questioned  that  when  investigating  the  nature 
and  existence  of  the  powei-s  conferred  by  the  Constitution  upon 
Congress,  it  is  indispensable  to  keep  in  view  the  objects  for  which 
those  powers  were  granted.  This  is  a  universal  rule  of  construc- 
tion, applied  alike  to  statutes,  wills,  contracts,  and  constitutions.  If 
the  general  purpose  of  the  instrument  is  ascertained,  the  language 
of  its  provisions  must  be  construed  with  reference  to  that  purpose, 
and  so  as  to  subserve  it.  In  no  other  way  can  the  intent  of  the 
framers  be  discovered."  ^ 

1  Deciiled,  December  Term,  1870.  Tlie  .opinions  given  in  tliese  cases 
may  also  be  found  in  Macpherson's  Political  Handbook  for  1874,  p.  40. 

2  It  may  be  worth  noticing  that  it  is  the  "  intent  "  or  "  purpose  "  of  a  known 
p&son  that  is  sought  in  all  instruments.  There  is  no  such  thing  as  the  intent 
of  an  instrument,  of  which  we  speak  only  figuratively.  In  ordinary  in- 
struments the  intending  person  is  always  before  the  mind.  The  intent 
sought  in  the  Constitution  is  tlie  purpose  of  those  who  make  it  law  to-day. 
The  court  speaks  of  it  as  one  might  of  a  testament  left   by  "  the  framers," 


THEORY   or   OUR   NATIONAL   EXISTENCE.  427 

The  Legal  Tender  Cases.     Opinion  of  the  Court. 

"  No  single  power  is  the  ultimate  eud  for  which  the  Constitution 
was  adopted.  It  [i.e.,  the  single  power  ?]  may  in  a  very  proper 
sense  be  treated  as  a  means  for  the  accomplishment  of  a  subordinate 
object ;  but  that  object  is  itself  a  means  designed  for  an  ulterior 
purpose.  Thus  the  power  to  levy  and  collect  taxes,  to  coin  money 
and  regulate  its  value,  to  raise  and  support  armies,  or  provide  for 
and  maintain  a  navy,  are  all  instruments  for  the  paramount  object 
which  was  to  establish  a  government  sovereign  within  its  sphere, 
with  capability  of  self-preservation,^  thereby  forming  a  union  more 
perfect  than  that  which  existed  under  the  old  confederacy." 

After  quoting  Chief  Justice  Marshall's  language,  Mr. 
Justice  Strong  proceeds  to  say  (^ib.  533),  — 

"  That  would  appear,  then,  to  be  a  most  unreasonable  construc- 
tion of  the  Constitution  which  denies  to  the  government  created  by 
it  the  right  to  employ  every  means,  not  prohibited,  necessary  for  its 
preservation,  and  for  the  fulfilment  of  its  acknowledged  duties.  Such 
a  right,  we  hold,  was  given  by  the  last  clause  of  the  eighth  section  of 
its  first  article.  The  means  or  instrumentalities  referred  to  in  that 
clause,  and  authorized,  are  not  enumerated  or  defined.  In  the 
nature  of  things,  enumeration  and  specification  were  impossible. 
But  they  were  left  to  the  discretion  of  Congress,  subject  only  to 
restrictions  that  they  be  not  prohibited,  and  be  necessary  and  proper 
for  carrying  into  execution  the  enumerated  powers  of  Congress  and 
all  other  powers  vested  in  the  government  of  the  United  States,  or 
in  auy  department  or  officer  thereof." 

And  in  the  same  opinion  (ib.  545),  — 

as  if  their  individual  intentions  should  operate  when  they  were  dead  and 
gone;  whereas  "the  franiers  "  had  no  more  authority  in  its  adoptiou  than 
any  other  citizens.     Compare  ante,  p.  296. 

1  In  the  opening  sentences  of  this  opinion,  12  Wall.  529,  this  phrase  oc- 
curs,—  "a  power  possessed  by  every  independent  sovereignty  other  tlian 
the  United  States  "  :  innuendo  that  the  Government  and  the  United  States 
are  identical.  That  the  United  States,  i.  e.,  the  States  in  union,  possess  all 
the  powers  of  any  independent  sovereignty,  was  the  fact.  The  question  was 
wliether  they  had  delegated  one  of  these  powers  to  the  government  existing 
under  their  law.  These  few  words  give  the  key  to  the  whole  decision,  as  is 
more  clearly  shown  by  Mr.  Justice  Bradley  in  his  separate  opinion,  post, 
p.  431. 


428  THE   PLACE   OF   SOVEREIGNTY. 

The  Legal  Tender  Cases.     Opinion  of  the  Court. 

"  The  Constitution  was  intended  to  frame  a  government,  as  dis- 
tinguished from  a  league  or  comjiact ;  a  government  supreme  in 
some  particulars,  over  States  and  people." 

Sentences  of  this  sort  may  be  found  in  many  earlier  as 
well  as  later  opinions.  To  say  that  the  government  is  not 
a  league  or  compact,  as  framed  by  the  Constitution,  is  a 
meaningless  truism,  unless  it  is  implied  that  there  was 
somebody,  and  is  somebody  now,  in  existence,  who,  by 
legislating  in  the  Constitution,  had  placed  the  States,  as 
well  as  the  individual  inhabitants  of  the  States,  under  the 
jurisdiction  of  the  general  Government.  Who  this  person 
may  have  been,  or  now  is,  is  left  to  the  imagination.  Un- 
less such  person  can  be  found,  however,  the  Government 
cannot  have  any  authority  over  States,  as  such,  and  they 
remain  what  they  were  at  the  beginning,  —  possessors,  in 
their  corporate  capacity,  of  sovereignty  in  union. 

So  far  as  these  expressions  convey  any  consistent  mean- 
ing, it  is  that,  by  some  means  or  other,  a  government  came 
into  existence  which  was  not  merely  the  agent  of  a  pre- 
existing and  continuing  possessor  of  sovereign  power,  but 
a  government  sovereign  in  itself,  and  entitled  as  such  to 
nuiintain  itself  against  all  the  world.  In  this  instance,  as 
in  so  many  others,  earlier  and  later,  no  recognition  is  made 
of  an  author  of  the  Constitution  to  whose  continuing 
personal  existence  and  continuing  will  its  autliority  as 
law  should  be  ascribed.  Powers  are  spoken  of  as  "  con- 
ferred by  the  Constitution."  There  is  a  recognition  that 
the  Constitution  was  "  adopted,"  and  that  it  was  "  in- 
tended." But  who"  those  were  who  so  adopted  and  so 
intended  is  not  specified,  unless  by  the  allusion  to  "  the 
intent  of  the  framers,"  who,  whatever  may  have  been 
their  personal  merits,  had  no  more  authority  to  give  to  the 
Constitution  as  law  than  the  most  obscure  voter  in  their 
day. 

This  is  nothing  more  than  a  stale  presentation  of  the 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  429 

Marshall,  cited  in  the  Opinion  of  the  Court. 

fetish  constitution,  supposed  to  operate  of  itself  after  liav- 
ing  been  once  set  a-going.  In  its  search  for  the  ultimate 
object  of  the  Constitution  as  a  means,  the  court  stopped 
on  reaching  the  Government.  But  the  next  question  was? 
What  was  the  object  for  creating  that  Government  in  the 
minds  of  those  now  living  persons,  whoever  they  may  be, 
who  to-day  give  to  that  Constitution  all  its  authority  ?  ^ 

The  decision  of  this  question  of  historical  fact  is  beyond 
the  power  of  any  court  of  law  whatever.  Therefore,  it 
does  not  give  any  argumentative  force  to  such  solutions  of 
the  political  question  to  cite  statements,  equally  weak  and 
meaningless,  which  had  been  made  by  an  earlier  judge  ; 
even  though  that  judge  was  the  great  lawyer  and  univer- 
sally honored  citizen,  John  Marshall. 

After  saying  in  the  same  opinion  (ib.  p.  533),  "  It  was 
certainly  intended  to  confer  upon  the  Government  the 
power  of  self-preservation,"  "^  Mr.  Justice  Strong  cites 
the  language  of  Marshall,  Ch.  J.,  in  Cohens  v.  The  Bank 
of  Virginia,  6  Wheat.  414.^ 

"  America  has  chosen  to  be  in  many  respects  and  to  many  pur- 
poses a  nation,  and  for  all  these  purposes  her  government  is  com- 

1  Ante,  p.  296. 

2  The  question  is,  What  was  the  "  self  "  that  was  to  be  preserved  ?  A 
government  which  is  an  agent  can  have  no  right  of  se//"-preservation  inde- 
pendently of  the  pre-existence  of  its  principals. 

3  In  this  place  Judge  Marshall  had  said,  "  That  the  United  States  form, 
for  many  and  most  important  purposes,  a  single  nation  has  not  yet  been 
denied.  [In  this  essay  it  is  held  that  tliey  form  a  single  nation  for  all  pur- 
poses.] In  war  we  are  one  people.  [How  would  the  judge  have  explained 
the  legislation  founded  on  belligerency  and  conquest  in  civil  war  ?  ante, 
p.  175.]  In  making  peace  we  are  one  people.  [Or  explained  the  recon- 
struction measures  ?]  In  all  commercial  regulations  we  are  one  and  the  same 
people.  [Or  the  Slaughter  House  Cases'?]  In  many  other  respects  the 
American  people  are  one,  [One  people  ?  In  what  sense  ?]  and  the  govern- 
ment which  alone  is  capable  of  controlling  and  managing  their  interests  in 
all  these  respects  is  the  government  of  the  Union.  [In  what  sense  of 
'  Union '  1  of  agent  for  the  United  States  or  of  government  acting  on  the 
States  ?]  It  is  their  government,  and  in  that  sense  they  have  no  other.  [To 
whom  do  '  their '  and  '  they  '  relate  ?  To  the  States  united,  or  '  tlie  peo- 
ple '■?  ]    America  has,"  etc.,  as  above. 


430  THE   PLACE   OF   SOVEREIGNTY. 

Marshall,  Ch.  J.,  cited  in  the  Supreme  Court. 

plete  ;  for  all  these  objects  it  is  supreme.  It  can,  then,  in  affecting 
these  objects,  legitimately  control  all  individuals  or  governments 
within  the  American  territory."  ^ 

In  a  case  where  the  essence  of  the  decision  was  the  dis- 
crimination of  living  political  organisms,  it  was  puerile 
rhetoric  to  use  a  term  like  "  America,"  which  has  never 
had  a  political  use.  The  question  occurs,  How  can  there 
be  a  nation  which  is  a  nation  only  for  some  purposes,  and 
not  for  all  ?  It  was  the  States  in  their  voluntary  union 
which  chose  to  be  a  nation  for  all  purposes  ;  and  for  this 
they  had,  as  matter  of  fact,  controlled  all  individuals, 
and  all  governments  within  their  geographical  American 
territory,  including  the  general  Government. 

Mr.  Justice  Strong  proceeds  to  cite  further  from  Judge 
Marshall  in  the  same  case  (6  Wheat.  387),  as  follows:  — 

"  A  constitution  is  framed  for  ages  to  come,  and  is  designed  to 
approach  immortality  as  nearly  as  mortality  can  appi"oach  it.  Its 
course  cannot  always  be  tranquil.  It  is  exposed  to  storms  and 
tempest,  and  its  framers  must  have  been  unwise  statesmen,  indeed, 
if  they  have  not  provided  it,  as  far  as  its  nature  will  permit,  with 
the  means  of  self-preservation  from  the  perils  it  is  sure  to  en- 
counter." 

"  As  far  as  its  nature  will  permit  "  is  an  unfortunate  qual- 
ification in  a  theory  which  elevates  constitutions  into  the 
rank  of  sentient  existences.  The  honored  Chief  Justice, 
in  this  deification  of  constitutions,  had  an  advantage  over 

1  Judge  Marshall  here  adds,  "  The  Constitution  and  laws  of  a  State,  so 
far  as  they  are  repugnant  to  the  Constitution  and  laws  of  the  United  States, 
are  absolutely  void.  [There  was  no  dispute  about  this.]  Tliese  States  are 
constituent  parts  of  the  United  States.  They  are  members  of  one  great 
emi)ire,  [Tiiey  were  the  United  States,  and  they  and  'the  empire'  were 
identical]  for  some  purposes  sovereign,  for  some  purposes  subordinate." 
[To  whom  ?]  They  had  in  union  laid  down  a  law  which  was  binding  on  the 
State  governments  and  on  the  general  Government ;  giving  the  judicial  de- 
partment of  the  latter  the  authority  to  aj)ply  this  law  in  cases  at  law.  But  in 
this  respect  the  general  Government  was  as  subordinate  as  were  the  State 
governments. 


THEORY  OF   OTJE   NATIONAL  EXISTENCE.  431 

The  Legal  Tender  Cases.     Opinion  by  Bradley,  J. 

his  brethren  of  a  later  time,  by  living  nearer  to  that  gen- 
eration over  whom  the  French  theories  of  the  eighteenth 
century  had  such  a  power  as  to  allow  their  belief  in  the  pos- 
sibility of  such  things.^  But  the  court  of  our  day,  in  the 
very  act  of  quoting  these  words  of  its  great  predecessor,  has 
had  the  sagacity  to  put  living  men  in  the  place  which  he  had 
ascribed  to  a  piece  of  parchment.  Even  though  it  be  also 
an  assumption  in  this  instance,  this  is  an  assumption  more 
in  accordance  with  the  nature  of  things.  It  is  "  the  Gov- 
ernment "  which,  in  the  court's  opinion,  now  appears  as 
the  self-existent  being. 

The  language  of  Mr.  Justice  Bradley,  in  a  separate 
opinion  sustaining  the  decision  of  the  majority,  is  still 
stronger  than  that  in  the  opinion  delivered  by  ]\Ir.  Justice 
Strong,  for  the  Court,  in  relying  on  the  political  theory 
of  a  government  supreme  and  self-supporting  in  its  nature. 

Judge  Bradley  remarked  (12  Wall.  554),  — 

"  The  Constitution  of  the  United  States  established  a  govern- 
ment, and  not  a  league,  compact,  or  partnership.  It  was  constituted 
by  the  people.  It  is  called  a  government.'^  In  the  eighth  section 
of  Article  I,  it  is  declared  that  Congress  shall  have  power  to  make 
all  laws  which  shall  be  necessary  and  proper  for  carrying  into  ex- 
ecution the  foregoing  powers,  vested  by  this  Constitution  in  the 
Government  of  the  United  States,  or  in  any  department  or  office 
thereof.  As  a  government  it  was  invested  with  all  the  attributes  of 
sovereignty.  It  is  expressly  declared  in  Article  VI.  that  the  Con- 
stitution and  the  laws  of  the  United  States,  made  in  pursuance  thereof, 

1  Ante,  p.  315.  In  this  same  case,  6  Wheat.  381,  Judge  Marshall  said, 
"  This  is  the  authoritative  language  of  the  American  people  ;  and,  if  gentle- 
men please,  of  the  American  States."  This  passage  exhibits  the  ultimate 
weak  point  of  that  school  which  may  have  been  founded  on  this  opinion. 
A  fact  is  identified  with  an  hypothesis,  though  the  fact  and  the  hypothesis 
contradict  each  other.  Marshall  could  not  help  seeing  that  all  law  was  trace- 
able to  the  States  in  union,  as  fact ;  and  yet  here  found  a  law  to  act  on  the 
States  as  "  subordinate,"  proceeding  from  the  people,  as  law-giver  by  hy- 
pothesis.    Compare  notes  on  pp.  Ill,  114. 

2  Compare  Mr.  Webster's  "  It  is  called  a  constitution."     Ante,  96  n. 


432  THE  PLACE   OF  SOVEREIGNTY. 

Bradley,  J.,  in  the  Legal  Tender  Cases. 

and  all  treaties  made  under  the  authority  of  the  United  States,  shall 
be  the  supreme  law  of  the  land.-' 

''  The  doctrine  so  long  contended  for  "  ^  .  .  . 

"  The  United  States  is  not  only  a  government,  but  it  is  a  national 
government,  and  the  only  government  in  this  country  that  has  the 
character  of  nationality.  It  is  vested  with  power  over  all  the 
foreign  relations  of  the  country,  war,  —  peace,  and  the  negotiations 
and  intercourse  with  other  nations,  all  of  which  are  forbidden  to 
the  State  governments.  It  has  jurisdiction  over  all  those  general 
subjects  of  legislation  and  sovereignty  which  afPect  the  interests  of 
the  whole  people  equally  and  alike,  and  which  require  uniformity  of 
regulations  and  laws,  such  as  ^.   .  . 

"  Such  being  the  character  of  the  General  government,  it  seems 
to  be  a  self-evident  proposition  that  it  is  invested  with  all  those  in- 
herent and  implied  powers  which,  at  the  time  of  adopting  the  Con- 
stitution, were  generally  considered  to  belong  to  every  government 
as  such,  and  as  being  essential  to  the  exercise  of  its  functions.*  If 
this  proposition  be  not  true  it  certainly  is  true  that  the  government  of 
the  United  States  has  express  authority,  in  the  clause  last  quoted, 
to  make  all  such  laws  (usually  regarded  as  inherent  and  implied) 
as  may  be  necessary  and  proper  for  carrying  on  the  government  as 
constituted  and  vindicating  its  authority  and  existence." 

A  plainer  statement  of  the  political  doctrine  by  which 

1  Compare  Mr.  Justice  Strong's  argument  from  these  words  in  Tennessee. 
Davis,  ante,  416. 

2  The  remainder  of  tliis  paragraph  from  the  opinion  has  already  been 
cited,  ante,  p.  89,  n.  2. 

^  Judge  Bradley  proceeds  to  describe  these,  and  in  doing  this  says  (ib.  656), 
"And  the  Government  is  clothed  with  power  to  guarantee  to  every  State  a 
republican  form  of  government,  and  to  protect  each  of  them  against  invasion 
and  domestic  violence."  I  think  it  is  not  mere  verbal  criticism  to  notice 
this  novel  presentation  of  the  guaranty  given  by  "  the  United  States,"  in 
sect.  4  of  Art.  IV.  {ante,  p.  214,  n.),  as  illustrating  an  existing  tendency  to 
ignore  the  political  sovereign  from  which  the  Constitution  proci'cds,  and  the 
fact  tiiat  the  general  Government  is  only  an  agent,  and  to  substitute  it  as  the 
only  sui)ronie  power  holder,  whicli  gives  or  withholds  republican  government 
at  its  pleasure.     Compare  ante,  p  342. 

*  If  it  has  all  the  functions  of  any  government  it  is  superfluous  to  say 
that  it  has  all  the  powers  necessary  for  those  functions.  If  its  functions  are 
limited,  they  must  be  so  by  some  law.  That  law  must  have  an  author,  or 
source.  But  if  the  government  exists  under  such  a  law,  it  has  not  any  of 
the  attributes  of  sovereignty. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  433 

The  Legal  Tender  Cases.     Mr.  Justice  Bradley. 

this  and  later  cases  in  the  Supreme  Court  have  been  de- 
cided could  not  be  desired,  and  the  judge's  fellow-citizens 
owe  a  debt  of  gratitude  for  such  an  outspoken  utterance 
from  the  bench.  As  to  the  argument,  the  only  possible 
answer  would  be  that  the  general  Government  had  not 
the  character  here  described  before  1861,  and  nobody  had 
shown  that  it  had  acquired  that  character  afterwards. 
Judge  Bradley,  in  continuing,  says,  — 

"  Another  jiroposition  equally  clear  is  that,  at  the  time  the  Con- 
stitution was  adopted,  it  had  for  a  long  time  been  the  practice  of 
most,  if  not  all  civilized  governments,  to  employ  the  public  credit 
as  a  means  of  anticipating  the  national  revenues  for  the  purpose  of 
enabling  them  to  exercise  their  governmental  functions,  and  to  meet 
the  various  exigencies  to  which  all  nations  are  subject." 

Here  again  the  assumed  parity  of  the  general  Govern- 
ment, under  the  Constitution  as  law,  with  any  or  all  gov- 
ernments holding  sovereignty  by  right  above  law,  is  the 
foundation  of  the  argument,  which  is  developed  in  a  his- 
torical review  of  the  political  economy  of  the  subject. 
{Ih.  pp.  556-570.) 

In  the  course  of  this  {ib.  p.  561),  Judge  Bradley  intro- 
duces a  proposition  which,  of  itself,  would  settle  every- 
thing, — 

"  The  legislative  department  being  the  nation  itself."  -^ 

With  this  for  a  fundamental  fact,  the  written  Constitu- 
tion would  appear  quasi  obsolete,  and  the  future  labors  of 
the  Supreme  Court  proportionately  abbreviated. 

Judge  Bradley  in  tlie  same  place  remarks,  — 

1  In  the  House  of  Eepresentatives,  Jan.  3,  1867,  in  the  debate  on  House 
Bill  No.  543  [ante,  p.  221,  n.),  Mr.  Thaddeus  Stevens  said,  "  In  this  country 
the  whole  sovereignty  rests  with  the  people,  and  is  exercised  through  their 
representatives  in  Congress  assembled.  The  legislative  power  is  the  sole 
guardian  of  that  sovereignty.  No  other  branch  of  the  government,  no 
other  department,  no  other  officer  of  the  government,  possesses  one  single 
particle  of  the  sovereignty  of  the  nation."  Cong.  Globe,  2d  Sess.  39th  Cong., 
p.  252. 


434  THE  PLACE   OF   SOVEREIGNTY. 

Chase,  Ch.  J.,  dissenting  in  tlie  Legal  Tender  Cases. 

"  The  interests  of  every  citizen  are  bound  up  with  tlie  fate  of 
the  government.  None  can  claim  exemption.  If  they  cannot 
trust  their  government  in  its  time  of  trial,  they  are  not  worthy  to 
be  its  citizens." 

Citizens,  here,  were  not  citizens  of  the  Gover7iment,  and 
the  interest  of  citizens  of  the  United  States  was  not  in  the 
fate  of  the  Government,  as  such  ;  but  only  as  its  "  trial  " 
might  involve  the  fate  of  their  sovereign,  from  whom  it 
derived  all  that  made  it  a  government.  That  sovereign 
was  the  States  then  remaining  in  a  voluutarj^  union.  The 
Government  was  on  trial ;  because  it  was  questionable 
whether,  as  constituted,  it  was  an  adequate  instrument 
for  the  needs  of  the  sovereign  at  such  a  crisis.  But  if  it 
took  powers  not  belonging  to  it,  as  constituted,  —  because 
it  was  not  able  to  answer  those  needs,  otherwise,  —  then 
its  trial  proved  it  to  be  a  failure.^ 

The  position  taken  in  these  cases  by  the  court  was  de- 
scribed in  its  political  bearing  by  Chief  Justice  Chase,  in 
his  dissenting  opinion  (12  Wall.  582)  :  — 

"  It  is  unnecessary  to  say  that  we  reject  wholly  the  doctrine  ad- 
vanced for  the  first  time,  we  believe,  in  this  court  by  the  present 
majority,  that  the  legislature  has  any  powers  under  the  Constitution 
which  grow  out  of  the  aggregate  of  powers  conferred  upon  the 
government  or  out  of  the  sovereignty  instituted  by  it.^  If  this 
proposition  be  admitted,  and  it  be  also  admitted  that  the  legislature 
is  the  sole  judge  of  the  necessity  for  the  exercise  of  those  powers, 
the  government  becomes,  practically,  absolute  and  unlimited." 

The  political  theory  indicated  in  the  opinions  of  the 
several  justices  is  here  considered  witliout  any  regard  to 
the  correctness  of  the  judgment  rendered  in  these  cases. 
Much  of  the  unfavorable  criticism  on  this  decision  has  been 

1  Compare  ante,  p.  20L 

2  If  Judge  Chase  had  ever  recognized  any  "  sovereignty  "  wliatever  as 
"  instituted  "  by  the  Constitution,  he  liad  lielped  to  build  up  the  idea  of  a 
supreme  or  sovereign  government,  which  was  turned  against  liim  on  this 
occasion. 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  435 

Political  Basis  of  the  Decision. 

founded  solely  on  an  assumption  that  the  maxim  Stare 
decisis  applies  in  cases  involving  political  rights.  For 
reasons  already  stated,^  it  may  be  urged  that,  when  political 
powers  are  involved,  the  judgment  of  the  Supreme  Court 
in  the  particular  case  should  be  recognized  as  final,  without 
accepting  the  grounds  given  for  that  single  decision  as  con- 
clusive on  a  doctrine  of  public  law. 

It  must  be  clear  that  the  general  Government  becomes 
"  practically  absolute  and  unlimited,"  just  as  truly  when 
the  judiciary,  which  is  as  much  a  part  of  that  Government 
as  "  the  legislature,"  is  to  be  the  "judge  of  the  necessity 
for  the  exercise  of  those  powers,"  to  an  extent  beyond  the 
determination  of  the  rights  and  obligations  of  parties  to 
the  particular  case  presented  for  its  judgment. 

These  cases  in  the  Supreme  Court  are,  like  all  earlier 
cases,  a  portion  of  the  means  of  ascertaining  what  extent 
of  power  may  be  legally  claimed  for  the  several  branches 
of  the  general  or  national  Government.  The  discussion  of 
this  belongs  to  treatises  on  constitutional  law,  properly  so 
called. 

In  an  essay  of  a  political  character,  the  inquiry  would 
not  be  whether  these  judgments  are  sustainable  in  view  of 
the  Constitution  and  Amendments,  as  written  law,  but 
rather,  —  assuming  that  they  will  be  sustained,  —  what 
theory  of  the  possession  of  sovereign  power  they  indicate. 

The  question,  then,  is  whether  these  judgments  are 
sustainable  under  any  other  theory  than  that  which  sub- 
stitutes the  unitary  sovereignty  of  the  nation  as  a  mass, 
represented  by  a  national  Government,^  for  the  unitary 
sovereignty  of  the  organized  States  in  a  voluntary  union. 

I  shall  not  offer  any  opinion  whether  the  language  of 
any  judge  in  these  cases  amounts  to  a  declaration  that 
this  theory  has  now  become  true  in  consequence  of  events 
occurring  since  1861.     The  meaning  of  the  phrases  now  in 

1  Ante,  p.  350.  2  y^nte,  p.  356. 


436  THE  PLACE   OF   SOVEREIGNTY. 

The  conflicting  Decisions  ;  how  reconciled. 

use  on  the  general  subject,  called  in  common  parlance 
""  the  results  of  the  war,"  is  as  yet  too  unsettled  for  a  basis 
of  such  criticism,  the  question  of  revolution  or  no  revolu- 
tion never  having  been  squarely  stated. 

But  this  at  least  is  plain,  that,  so  far  as  any  argument 
to  support  any  view  of  the  present  location  of  sovereign 
power  may  be  based  on  history  before  1861,  it  would  be, 
pro  tanto,  inconsistent  with  the  idea  of  basing  it  on  any- 
thing occurring  after  that  date  ;  for,  if  this  idea  be  adopted, 
the  early  history  is  entirely  immaterial. 

The  value  of  all  earlier  judicial  assertions  of  the  origin 
of  the  Constitution  of  the  United  States  in  tire  will  of  the 
people  or  nation  as  a  mass,  in  distinction  from  its  origin  in 
the  will  of  the  States  united,  when  such  assertions  are 
compared  with  the  historical  record,  has  already  been 
considered.  It  will  hardly  be  contended  that  the  iteration 
of  such  assertions,  made  by  judges  now  on  the  bench,  as 
to  facts  which  occurred  before  they  were  born,  must  have 
a  higher  value,  as  testimony,  than  tlie  assertions  of  their 
predecessors,  for  the  reason  that  the  newer  statements  are 
made  after  a  civil  war  in  which  the  Government  had  done 
no  more  than  sustain  itself  in  the  possession  of  such 
powers  only  as  it  had  previously  held. 

If  any  of  the  members  of  the  court  seem  to  say  that 
a  question  as  to  what  had  happened  before  1787  had 
been  settled  by  something  that  had  occurred  since  1861, 
the  absurdity  of  such  language  must  be  explained  away 
by  supposing  them  to  have  intended  to  say  that  a  political 
event  had  occurred,  after  the  later  date,  which  made  a 
theory  true  ^ /or  the  future  which  a  certain  school  of  jurists 

1  The  judgment  in  the  so-called  Legal  Tender  cases,  at  December  term, 
1870,  was  in  opposition  to  the  judgment  on  the  same  question  in  Hepburn  i;. 
Griswold,  8  Wall.  626,  decided  in  conference,  Nov.  27,  186U.  But  the  con- 
flict in  these  decisions  could  perhaps  be  explained  on  the  supposition  that, 
whereas  the  earlier  had  been  made  in  view  of  a  political  theory  which  had 
been  good  enough  up  to  a  certain  date,  the  later  decision  was  rendered  by  a 


THEORY  OF   OUR   NATIONAL   EXISTENCE.  437 

Judicial  Recognition  of  a  political  Change. 

had  professed  to  discover  in  the  history  of  the  last  cen- 
tury.i 

But  such  a  political  event  could  be  found  only  in  that 
action  of  the  Government  which,  on  the  supposition  of  the 
continued  existence  of  the  eleven  States  of  the  Confed- 
eracy, was  usurpation,  as  already  contended.^ 

If,  therefore,  these  decisions  are  sustained  on  the  ground 
that  sovereignty  in  this  country  is  now  vested  in  the  nation 
as  a  mass,  and  not  in  the  States  in  their  voluntary  union, 
it  must  be  assumed  that  the  court  has  recognized  a  revo- 
lutionary change  since  1861,  or  proposes  to  assist  in  ac- 
complishing such  a  change  by  the  method  of  juristical 
construction  deprecated  by  Judge  Parker.^ 

majority  of  justices,  some  of  whom  recognized  that  a  revolutionary  change 
in  tiie  seat  of  sovereignty  had  taken  place.  The  judgment  in  tlie  earlier 
case  had  been  sustained  by  five  (Chase,  Ch.  J.,  Nelson,  Grier,  Clifford,  and 
Field,  JJ.,  Grier,  J.  being  only  against  legal  tender  as  extended  to  prior 
contracts),  against  three  (Miller,  Swayne,  Davis,  JJ.),  the  court  then  con- 
sisting, by  law,  of  eigiit  members.  The  later  judgment  was  supported  by 
five  (Miller,  Swayne,  Davis,  Strong,  and  Bradley,  JJ.),  against  four  (Chase, 
Ch.  J.,  Nelson,  Clifford,  Field,  JJ.);  the  court,  as  reorganized  by  statute 
taking  effect  December,  1860,  consisting  of  nine  members,  Grier,  J.  having 
resigned  ;  Strong  and  Bradley,  JJ.  were  new  appointments.  See  Reporter's 
note,  12  Wall.  528.  In  the  earlier  opinions  the  argument  for  the  power  as 
incidental  to  that  exercised  in  the  temporary  state  of  war  was  advanced. 
But  in  Juillard  v.  Greenman  (1884),  110  U.  S.  421,  where  the  Act  of  May  31, 
1878,  for  the  reissue  of  the  old  notes,  was  in  question,  the  power  was  sus- 
tained, not  only  as  granted  in  the  authority  "  to  coin  money,  regulate  the 
value  thereof  and  of  foreign  coin  "  (Const.,  Art.  1,  §  8),  but  as  ascribable  to 
the  inlierent  sovereignty  of  the  government,  as  asserted  by  Marshall,  Story, 
and  others  (opinion  of  the  court  by  Gray,  J.,  appointed  1881).  Field,  J. 
dissented  on  tiie  construction  of  the  clause,  and  also  repudiated  the  political 
doctrine,  saying,  ih.  467,  "There  is  no  such  thing  as  a  power  of  inherent 
sovereignty  in  the  government  of  the  United  States." 

1  Ante,  p.  108,  ix. 

2  Ante,  pp.  107,  333,  346. 

3  Ante,  p.  360.  As  to  this  question,  of  the  position  of  the  Supreme  Court, 
and  its  being  now  a  practical  question,  I  refer  to  an  article  in  the  North 
American  Review,  February,  1881,  —  "Partisanship  in  the  Supreme  Court," 
by  Senator  John  T.  Morgan. 


438  THE   QUESTION   OF   A  BEVOLUTION. 

Position  of  the  Judiciary. 


CHAPTER    VIII. 

Further  Consideration  of  the  Question  of  a  Revolutionart 
Change  of  the  Seat  of  Sovereign  Power.  —  Position  of  Private 
Jurists  in  Eeference  to  such  a  Question.  —  Position  of  Other 
Citizens  in  Public  or  Private  Station.  —  The  Question  of  Al- 
legiance a  Question  fob  All. 

It  may  be  that  the  extracts  given  in  the  last  chapter  from 
recent  judicial  opinions  will  suggest  the  inquiry  —  Does 
the  general  Government  now  exist  for  the  benefit  of  the 
States,  individually  and  united ;  or,  do  the  States,  individ- 
ually and.  united,  exist  for  the  benefit  of  the  general  Gov- 
ernment? 

But  this  is  the  question  which  the  Supreme  Court  has 
always,  from  its  earliest  day,  failed  to  answer  ;  for  it  is 
contradiction  to  talk  of  a  supreme  or  sovereign  Union,  and  at 
the  same  time,  of  a  government  which  may,  as  a  sovereign 
or  supreme  government,  maintain  itself  against  the  States 
which,  in  their  union,  are  the  sovereign  United  States. 

As  has  already  and  repeatedly  been  stated  in  these 
pages,  in  this  matter  of  recognizing  the  location  of  sov- 
ereign power,  judges  are  no  more  than  ordinary  private 
citizens.  If  they  leave  the  interpretation  of  the  Constitu- 
tion, as  law,  and  undertake  to  determine  the  political  per- 
sonality who  makes  it  law,  they  can  at  best  claim  only  to 
speak  as  impartial  historians,  but  with  no  other  means  of 
discerning  the  truth  than  other  historians  have.^ 

It  is  the  duty  of  the  historian  to  accept  the  facts  of  to- 
day as  he  does  those  of  yesterday.  It  is  perfectly  legiti- 
mate for  a  judge  to  recognize  that  the  law  he  administers 
to-day  proceeds  from  another  sovereign  than  that  from 

1  Ante,  pp.  5,  105,  215,  360. 


THEOKY   OF   OUR   NATIONAL   EXISTENCE.  439 

Position  of  private  Jurists. 

whom  the  same  rule  of  action  proceeded  when  he  admin- 
istered it  as  law  yesterday  ;  ^  but,  from  the  fact  that  his 
authority  to  apply  any  rule  as  law  must  proceed  from  some 
known  political  superior,  a  judicial  ofBcer  would  be  rather 
tardy  in  making  any  recognition  of  that  sort. 

It  therefore  was  not  to  be  anticipated  that  the  members 
of  the  judiciary  should,  in  their  official  character,  speak  as 
unrestrainedly  as  to  any  political  changes  which  may  pos- 
sibly be  discernible  as  the  result  of  the  civil  war  between 
the  years  1861  and  1868,  as  may  some  private  jurists,  who 
have  appeared  since  that  time  as  writers  on  our  public 
law. 

I  have  already  herein  referred  to  several  recent  publica- 
tions,^  which  in  title  and  form  are  juristical  works,  or 
teclniical  expositions  of  our  constitutional  law,  as  being 
based  on  that  theory  of  the  authority  of  the  written  Con- 
stitution, as  derived  from  the  will  of  the  people  or  nation 
as  a  mass,  which  I  have  hereinbefore  represented  as  neces- 
sarily placing  the  general  Government  above  the  United 
States,  or  the  political  peoples  of  the  States  in  a  voluntary 
union. 

I  readily  allow  that  the  authors  referred  to  may  not  all 
recognize,  as  a  legitimate  consequence  from  their  theory, 
that  result  which  I  have  hereinbefore  attributed  to  it ;  that 
is,  that  it  makes  the  general  Government  the  actual  and 
only  sovereign. 

That  Mr.  Pomeroy  at  least  denies  the  propriety  of  such 
a  conclusion  appears  in  his  work  on  constitutional  law, 
especially  from  §  86,  where  he  observes :  — 

"  But  here  it  is  necessary  to  repeat  and  elaborate  a  general 
doctrine,  which   has  already  been   dwelt  upon  with  some  emphasis, 

1  In  tlie  Slaughter  Housie  Cases  {ante,  p.  370),  Miller,  J.  said  (16  Wall.  71), 
—  "  We  repeat,  then,  in  the  light  of  this  recapitulation  of  events  almost  too 
recent  to'  he  called  history." 

2  Ante,  p.  114,  n. 


440  THE   QUESTION  OF   A  KEVOLUTION. 

A  Distinction  made  by  Mr.  Pomeroy. 

and  which  must  be  constantly  called  to  mind  through  the  whole 
course  of  the  present  inquiry  as  the  solution  of  many  a  difficulty 
and  ajsparent  contradiction.  This  truth  is,  the  absolute  and  neces- 
sary distinction  between  the  nation  which  is  the  source  of  political 
power,  and  the  government  which  is  the  creature  of  that  power, 
established  to  act,  in  certain  cases,  instead  of,  or  as  the  agent  of,  that 
nation." 

This  cautionary  statement  may  be  noticed  as  indicating 
that  there  is,  somewhere,  a  liability  to  make  the  general 
Government  something  more  than  an  agent,  and  that  this 
occasions  "  many  a  difficulty  and  apparent  contradiction." 

Mr.  Pomeroy,  himself,  fails  to  make  "  the  distinction  " 
visible  ;  because  "  the  nation,"  which  he  conceives  as  "  the 
source,"  is  only  an  hj^pothesis,  and  has  no  actual  existence 
as  a  political  personality. 

According  to  the  theory  sustained  in  this  essay,  there  has 
been  a  tangible,  come-at-able  somebody  who  could,  as  hold- 
ing sovereignty,  be  discriminated  from  the  government  of 
which  Mr.  Pomeroy  speaks.^  But,  under  his  theorj'-  and 
that  of  a  certain  school  (as  a  number  of  writers,  more  or 
less  distinguishable,  may  be  termed),  there  is  this  govern- 
ment plainly  enough,  on  the  one  hand  ;  but  as  for  the 
sovereign,  on  the  other  hand,  he  must  be  sought  in  the 
clouds,  or  in  the  realms  of  fancy :  for  except  as  this  gov- 
ernment is  found,  that  sovereign  cannot.be  found. 

1  I  -understand  Mr.  Pomeroy  as  meaning  by  "  people  "  or  "  nation  "  in 
this  connection,  tiie  whole  mass  of  inhabitants,  without  reference  to  political 
organization  as  the  political  peoples  of  distinct  States,  and  as  agreeing  in 
this  with  Mr.  Jameson's  conception,  ante,  p.  328,  n.  Compare  tlie  references, 
ante,  p.  118,  n. ;  p.  127,  n.  I  have  hereinbefore  referred  to  this  theory  as  that 
of  the  school  of  Story  and  Webster,  rather  because  these  jurists  are  com- 
monly supposed  to  have  upheld  this  theory  than  from  my  own  conviction 
that  this  was  the  case.  Neither  of  them,  as  far  as  I  know,  ever  defined 
what  he  understood  by  the  words  "the  people  of  the  United  States"  (ante, 
]).  3<>7),  and  each  may  appear  to  have  sometimes  accepted  the  theory  of  a 
division  of  sovereign  powers,  resulting  from  a  grant  or  cession  by  the  States, 
—  the  theory  s\istained  by  Mr.  Webster's  biographer,  Mr.  Curtis,  which  he 
thinks  was  Mr.  Webster's  own  and  tiiat  of  "  the  best  minds  in  New  Eug- 
land  "  iu  liis  day.     Ante,  p.  115,  n. 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  441 

Mr.  Fomeroy's  Statement  criticised. 

Whatever  may  be  the  idea  of  his  own  position  which  the 
author  intends  to  give  in  the  section  which  follows  the 
above  citation,  its  language  may  be  noticed  as  giving  a 
wrong  idea  of  the  views  taken  by  those  who  fail  to  recog- 
nize his  own  theory.     His  words  are  (^6.  §  87)  :  — 

"  We  affirm  that  the  People  of  these  United  States  are  the  nation, 
possessed  of  supreme  powers,  and  that  the  government  of  the  United 
States  is  their  creature  and  agent.  All  those  theorists  who  deny  the 
original  and  essential  unity  and  nationality  of  this  people,  declare 
that  the  separate  states  are  or  were  the  original  nations.  As  a  con- 
sequence it  is  either  expressly  maintained,  or  tacitly  assumed,  that 
there  is  no  United  States  apart  from  the  limited  government  created 
by  the  Constitution  ;  in  a  word,  that  the  United  States,  and  the  gov- 
ernment thereof,  which  we  recognize  as  distinct,  are  one  and  the 
same  existence.^  In  this  short  sentence  are  summed  up  the  dif- 
ferences between  the  advocates  of  nationality  and  those  of  state 
sovereignty.  If  we  fail  to  apprehend  the  truth  of  the  doctrine 
which  I  have  stated,  we  shall  fail  to  obtain  any  adequate  concep- 
tion of  the  imperial  character  of  the  people  as  an  organic  jjolitical 
society." 

As  I  have  understood  the  States-rights  theory,  all  who 
have  supported  it  in  any  form  or  degree  unite  in  regarding 
the  general  Government  as  the  agent  of  the  States  in  their 
political  union,  whatever  that  may  be  under  that  theory. 

In  the  earlier  part  of  this  essay  I  have  endeavored  to 
show  that  one  may  "  deny  the  original  and  essential  unity 
and  nationality  of  the  people  of  the  United  States,"  as 
Mr.  Pomeroy,  Mr.  Jameson,  and  others  at  the  present 
day,  understand  the  word  "  people,"  without  declaring 
that  "  the  States  are  or  were  the  original  nations." 

That  Mr.  Pomeroy's  own  theory  necessarily  leads  to 
identifying  the  general  Government  and  the  United  States, 
or  rather,  in  placing  that  government  in  the  place  of  sov- 

1  I  understand  this  description  as  answering  substantially  to  that  view 
which  I  have  tried  to  define  under  IV.,  ante,  p.  102. 


442  THE    QUESTION   OF    A    REVOLUTION. 

The  Phrase  —  "  Settled  by  the  War." 

ereignty  which  belongs  to  the  United  States,  has,  I  think, 
been  shown  in  the  debates  on  the  reconstruction  measures 
and  in  the  judicial  opinions  cited  in  the  last  chapter. 

It  is  proper  to  notice  that  Mr.  Pomeroy,  with  the  view 
apparently  of  strengthening  his  original  position,  has  in 
the  fourth  edition  of  his  treatise  (1879),  in  the  appen- 
dix (§§  761-763),  represented  the  Supreme  Court  as  hav- 
ing, in  recent  decisions,  sustained  the  theory  maintained  in 
his  work.  To  show  this,  he  cites  the  language  of  Chief 
Justice  Chase  in  Lane  County  v.  Oregon,  and  in  Texas  v. 
White,  ante,  p.  12.i 

Readers  who  are  at  all  familiar  with  the  course  of  polit- 
ical controversies  in  this  country,  during  the  last  ten  or 
fifteen  years,  will  undoubtedly  have  a  general  recollection 
of  many  occasions  on  which  some  statement  of  political 
doctrine,  agreeing  more  or  less  closely  with  the  views  ad- 
vanced by  the  judges  and  jurists  hereinbefore  cited,  has 
been  proclaimed  as  "  settled  by  the  war."  This  has  been 
done  too  by  persons  whose  connection  with  public  affairs 
may  give  more  or  less  weight  to  such  an  exposition  of  a 
mere  opinion.  It  must  be  superfluous,  as  itw^ouldbe  quite 
impossible,  to  exhibit  their  number  and  comparative  im- 
portance. 

There  is,  however,  a  noticeable  difference  in  the  various 
assertions  of  this  as  a  logical  conclusion.  Two  principal 
conceptions  of  the  nature  of  the  supposed  settlement  may 

1  A  letter  from  the  Chief  Justice  to  the  author  is  also  given  as  showing 
that  the  judge's  view  was  in  harmony  with  his  own.  Whether  such 
agreement  can  be  found,  I  should  not  venture  to  say.  The  definition  of  a 
State  by  the  judge  (a/i/c,  p.  9)  seems  somewhat  inconsistent  with  the  author's 
understanding  of  his  much-quoted  assertion  of  State  existence  (ante,  p.  12), 
and  the  author's  article  in  "  The  Nation,"  also  given  in  the  same  section,  ap- 
proving the  decision  of  the  court,  appears  rather  at  variaujce  with  the 
original  theory  of  the  text-book.  At  the  same  time,  both  the  judge  and  the 
jurist  are  contradicted  by  the  theory  of  the  Reconstruction  measures  and 
the  decisions  cited  in  the  last  chapter,  each  placing  the  Slates  in  subordina* 
tiou  to  the  general  Goverumeut. 


THEORY   OF   OUK   NATIONAL   EXISTENCE.  443 

Two  Conceptions  of  tlie  Settlement. 

be  easily  distinguished  in  such  assertions,  which,  though 
essentially  contradictory  to  each  other,  are  generally  pre- 
sented in  some  sort  of  combination. 

1.  Of  these,  one  may  be  called  the  argument  founded 
upon  the  lawyer's  point  of  view  of  the  circumstances. 

2.  The  other,  —  one  recognizing  in  the  same  circum- 
stances a  revolutionary  change,  or  something  analogous  ; 
which  may  be  called  the  argument  founded  upon  the 
notion  of  "  a  war  of  ideas." 

In  the  sixth  chapter  I  have  made  various  extracts  from 
the  debates  in  Congress  on  the  Reconstruction  measures, 
as  part  of  tlie  res  gestce,  showing  on  what  doctrines  of  our 
constitutional  law  the  majority  supposed  their  legislation  to 
be  founded.  It  is  likely  that  many  assertions  may  be  found 
in  those  debates  that  some  particular  doctrine  had  been 
"  settled  by  the  war."  It  might  be  possible  to  distinguish 
here  and  there  a  debater  who  had  more  or  less  clearly 
asserted  this  on  one  or  the  other  of  the  two  positions  above 
stated. 

But  in  this  question,  as  to  the  process  of  reasoning  by 
which  it  is  to  be  known  hoiv  aiiy  doctrine  can  be  settled  by 
war^  a  legislator  is  no  better  authority  than  anybody  else. 
This  is  matter  of  purely  logical  demonstration. 

On  this  account  I  offer  as  illustrations  of  these  methods 
of  proof  some  which  may  present  the  argument  in  the 
clearest  point  of  view,  without  reference  to  the  station  of 
those  Avho  are  the  authors. 

As  being  the  most  recent  statement  of  this  sort,  and 
one  proceeding  from  the  present  holder  of  the  highest 
place  in  the  administration  of  the  general  Government,  I 
here  cite  a  passage  from  the  Inaugural  Address  of  President 
Garfield,  March  4,  1881 :  — 

"  The  supremacy  of  the  nation  and  its  laws  should  be  no  longer 
a  subject  of  debate.  That  discussion,  which  for  half  a  century 
threatened  the  existence  of  the   Union,  was  closed  at  last  in  the 


444  THE   QUESTION   OF  A  KEVOLFTION. 

Illustration  of  the  Lawj-er's  Point  of  View. 

liigli  court  of  war  by  a  decree  from  which  there  was  no  appeal,  — 
that  the  Constitution,  and  the  laws  made  in  pursuance  thereof,  are  and 
shall  continue  to  be  the  supreme  law  of  the  land,  binding  alike 
upon  the  States  and  the  people.  This  decree  does  not  disturb  the 
autonomy  of  the  States  nor  interfere  with  any  of  their  necessary 
rules  of  local  self-government,  but  it  does  fix  and  establish  the  per- 
manent supremacy  of  the  Union." 

This  view  of  the  circumstances  as  a  "decree"  or  judg- 
ment of  an  issue  at  law  had  often  been  presented  at  a 
much  earlier  date.  As  showing  the  rationale  of  what  I 
have  here  designated  the  lawyer's  point  of  view,^  no  better 
example  can  be  found  than  that  given  in  the  letter  of 
Judge  Isaac  S.  Redfield  to  Senator  Foot,  to  which  reference 
has  herein  already  been  made.^ 

The  writer  says  in  the  opening  :  — 

"  It  is  probably  from  the  fact  that  I  have  attempted  to  look  at 
the  questions  alluded  to  in  your  letter  as  '  Reorganization  and  Negro 
Suffrage '  from  an  exclusively  legal  point  of  view,  more  than  from 
any  other  fact,  that  my  deductions  present  in  any  degree  the  ap- 
pearance of  novelty  or  interest.  And  I  suppose  their  plausibility, 
if  such  they  possess,  is  mainly  attributable  to  that  logical  sequence 
which  connects  them  with  their  antecedents,  and  which  I  have  at- 
tempted to  preserve.  But  I  am  not  insensible  to  the  fact  that 
many  logical  and  plausible  theories  in  civil  jurisprudence,  when 
attempted  to  be  reduced  to  practice,  are  found  as  impracticable  as 
those  of  the  most  absurd  and  inconsequential  character. 

"  But  as  you  have  had  the  courtesy  to  express  an  interest  in  my 
speculations  or  opinions  as  a  mere  lawyer,  the  only  office  I  aspire 
to  have,  I  will  give  you  a  mere  outline  of  them  in  the  briefest 
form." 

Judge  Redfield  proceeded  to  say  :  — 

"  I.    The  first  great  question,  then,  is,  What  has  been  the   result 

of  the  war  ?     What  has  it  settled  ?     How  does  it  leave  the  States  ? 

"  1.    What  questions  has  the  war  settled  ?  —  War  may  fairly  be 

1  Ante,  p.  109.  2  Ante,  p.  2C9. 


THEORY  OF   OUR   NATIONAL   EXISTENCE.  445 

Judge  Redfielcl's  Argument. 

considered  as  an  action  pending  in  the  only  tribunal  having  full 
jurisdiction  of  questions  between  nations  and  fragments  of  nations, 
—  the  tribunal  of  force  —  ultima  ratio  regum.  The  results  of  the 
war  then  may  be,  not  inaptly,  considered  under  the  figure  of  a 
judgment,  in  an  action  in  a  court  of  justice  ;  for  such  in  fact  is  war 
more  than  anything  else. 

"  2.  The  judgment,  as  in  other  cases,  concludes  all  the  issues  in- 
volved in  the  action.  The  most  important  of  these  issues  is  that  in 
regard  to  the  paramount  sovereignty  of  the  nation,  and  the  right  to 
vindicate  that  sovereignty  by  force  of  arms  against  all  aggressions, 
as  well  from  within  as  without.  "VVe  think,  then,  that  the  National 
Government  may  fiiirly  claim,  against  those  engaged  in  the  rebel- 
lion, that  the  result  has  established  forever  their  right  to  the  j^ara- 
mount  sovereignty,  and  to  vindicate  the  same  by  force.  And  it 
must  follow  as  a  result  of  this,  that  the  war  has  conclusively  de- 
termined that  secession  is  rebellion  and  treason,  and  that  the  National 
Government  may  put  it  down  by  force  of  arms,  and  punish  the 
offenders  in  any  and  all  legal  modes.  It  will  be  seen  that  this  is 
making  the  national  sovereignty  not  only  supreme,  but  also  the 
judge  of  the  extent  and  nature  of  its  own  powers.  This  is  but  the 
indispensable  consequence  of  the  paramount  national  sovereignty. 
Tins  was  the  great  and  main  question  involved  in  the  war  and 
which  must  be  regarded  as  forever  put  at  rest  by  the  result  of 
the  war,  or  the  judgment  in  the  action. 

"  But,  it  will  be  asked,  How  does  this  leave  the  States  ?  "  — 

His  answer  is,  "  Unquestionably,  in  a  subordinate 
position." 

By  what  next  follows  in  his  letter,  the  writer  shows  that 
he  means  that  all  the  States  of  the  Union,  not  merely  the 
"  rebel  "  States,  are  thus  concluded.  That  is,  his  position 
is  that  the  arbitrament  of  war  between  those  eleven  States 
or  their  rebel  populations  and  the  government  supported  by 
all  the  States  voluntarily  continuing  in  union,  was  like 
a  trial  at  law  determining  the  rights  of  all  the  States^ 
and  that  the  decision  attained  by  their  own  victory  as 
States  composing  the  Union  placed  the  Northern  States 


446  THE   QUESTION  OF  A  REVOLUTION. 

The  Lawyer's  Point  of  View. 

in  a  subordinate  position  to  the  government  they  had  sup- 
ported.i 

Judge  Redfield  said  :  — 

"  Unquestionably  in  a  subordinate  position.  But  that  is  pre- 
cisely the  position  in  which  they  are  placed  by  the  Constitution." 

Tliis  description  must  apply  to  all  the  States.  And  he 
then  went  on,  contradicting  his  assumption  that  the  ques- 
tion of  the  law  of  the  case  had  l^een  settled  by  the  arbi- 
trament of  war,  by  stating  what  that  law  always  had  been. 
But  if  he  had  the  right  to  declare  this,  there  was  no  need 
of  a  trial  of  any  sort  to  settle  what  the  law  should  be. 
He  remarks :  — 

"  The  very  fact  of  giving  the  national  tribunals  the  supreme 
jurisdiction  in  all  questions  affecting  the  relations  of  the  States  to 
the  National  Government  and  a  supervisory  power  over  the  State 
courts,  upon  all  those  questions,  by  inevitable  consequence,  made  the 
nation  supreme  and  the  States  subordinate.^  Every  lawyer  will 
understand  this,"  etc. 

Judge  Redfield,  being  still  limited  by  his  lawyers'  point 
of  view,  next  took  up  the  then  mooted  doctrine  of  "  State 
suicide,"  for  holding  which,  regarding  the  matter  as  a 
legal  inquiry,  he  of  course  could  find  no  ground.*^ 

1  Tliat  is,  the  Northern  States,  which  were  said  to  be  "  loyal,"  were,  on 
this  trial,  in  the  same  box  with  the  States  said  to  be  "  disloyal." 

2  I  do  not  know  whether  Redfield  considered  himself  of  the  same  political 
school  with  Story.  {Ante,  p.  272,  n.)  Here  he  announced  the  same  theory  of 
the  Constitution.  But  he  remarked  also  in  this  connection,  "Encroachment 
in  such  a  relation,  is  the  natural  course  of  events.  It  is  the  history  of  all 
unequal  relations  that  the  superior  becomes  more  and  more  powerful,  day  by 
daj',  while  the  subordinate,  year  by  year  and  day  by  day,  becomes  more  and 
more  dependent.  And  it  makes  no  dilference  whetiicr  the  claim  on  the  part 
of  the  superior,  in  any  instance,  is  just  or  unjust;  it  is  sure  in  the  end  to  pre- 
vail if  persistently  pursued."  Compaie  ante,  p.  343,  as  to  the  necessary'  con- 
sequences of  making  the  "  National  "  Government  the  onl^'  depositor}"^  of 
sovereign  power. 

8  His  words  are  :  "  4.  How,  then,  shall  the  States  be  treated  after  the  sur- 
render of  the  rebellion  ?  —  Tliis  will  depend  mainly  upon  our  views  of  the 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  447 

Judge  Redfield's  Argument. 

He  recognized  that  such  a  pohtical  result  would  make 
eveiything  clear  and  simple ;  but  was  misled  by  suppos- 
ing that,  if  received  at  all,  it  could  be  received  only  as  an 
effect  of  the  ivar.  In  this  respect,  however,  he  was  no 
blinder  than  were  Mr.  Sumner,  Mr.  Howe,  Mr.  Boutwell, 
and  others.^ 

Seven  pages  of  the  letter  are  given  to  prove  the  con- 
tinued political  existence  of  the  eleven  States.  Having 
thus  got  himself  almost  into  the  position  of  the  "  Conser- 
vatives," 2  the  writer  found  himself,  as  a  lawyer,  brought 
face  to  face  with  the  question  of  slavery,  which  he  also 
proposed  to  settle  by  finding  that  the  compatibility  or  non- 
compatibility  of  slavery,  in  ayiy  State  of  the  Union,  with 
our  form  of  government  was  one  of  the  issues  settled  by  a 
war  between  the  Government  and  the  insurrectionary  pop- 
ulations of  eleven  States. 

His  dilemma  and  its  solution  are  thus  stated  :  — 

"  II.  But  the  second  grand  inquiry,  and,  we  confess,  by  far  the 
most  embarrassing  one,  remains  to  be  considered,  —  that  is.  If  all 

effect  of  the  war  upon  tlie  States  as  political  persons  or  corporate  organ- 
izations. If  they  no  longer  exist,  for  any  purpose,  that  will  be  an  end  of  all 
question.  We  have  nothing  to  do  but  to  parcel  out  the  territory  into  new 
States,  at  the  discretion  of  the  National  Government,  and  there  is  no  occa- 
sion to  inquire  into  the  modus  operandi.  That  ceases  to  be  a  question  of  right 
and  becomes  one  of  expediency  merely.  But  we  think  very  few  will  claim 
all  this  at  the  present  day."  The  position  taken  in  this  essay  is  that,  in 
reality'',  this  has  been  done  without  being  claimed.     Ante,  p.  235. 

1  Ante,  pp.  272,  276,  279. 

2  He  spoke  of  the  States  as  one  might  of  corporations  holding  their 
powers  under  municipal  law,  —  argued  that  secession  was  ultra  vires  and  the 
ordinances  nullities,  which  was  the  argument  of  the  so-called  conservatives 
(ante,  p.  262  ) ;  but  he  held  that  the  State  was  still  to  be  found  in  a  "  con- 
structively loyal "  portion  of  the  inliabitants  of  each  State.  His  theory 
being  that  held  equally  by  Presidents  Lincoln  and  Johnson,  that  the  powers 
of  each  State  are  not  primarily  rights  of  the  State  as  a  political  personality, 
but  result  from  the  aggregated  "legal  rights  imder  the  Constitution"  be- 
longing to  individual  citizens,  which,  in  the  case  of  those  "loyal"  to  the 
general  Government,  were  under  its  protection  as  legal  rights.  Ante,  pp.  149, 
252. 


44S  THE   QUESTION   OF   A   REVOLUTION. 

The  Phrase  —  "  Settled  by  the  War." 

the  functions  and  powers  of  the  States  remain  the  same  as  before 
the  rebellion,  what  benefit  are  we  to  derive  from  all  this  expendi- 
ture of  blood  and  treasure  ?  —  This  is  a  question  often  put,  and  one 
which  carries  great  weight,  far  greater  than  it  is  entitled  to  have,  in 
many  instances.  But  we  do  not  fear  its  application  to  our  own 
views.  We  feel  that  we  have  already  stated  great  benefits,^  result- 
ing from  the  war,  in  that  it  has  settled  the  true  relations  of  the 
State  and  National  authority,  and  we  think  the  war  may  fairly  be 
regarded  as  having  determined  many  other  questions. 

"1.  It  seems  to  us  that  the  National  Government  may  fairly 
claim  that  the  war  has  determined  the  truth  that  slavery  is  incom- 
patible with  the  successful  operation  of  our  complicated  form  of  gov- 
ernment. We  think,  then,  that  the  nation  may  now  fairly  say  to  the 
States  where  slavery  has  hitherto  existed,  that  the  war,  having  fully 
established  the  point  that  slavery  is  a  fatal  hinderance  in  the  way  of 
the  just  operation  of  the  National  Government,  that  it  must  be  so 
treated  and  effectually  abolished  by  the  States."  ^ 

Being  also  confronted  by  the  question  of  reconstruction, 
slavery  being  disposed  of,  it  is  rather  surprising  that  the 
learned  writer  of  this  letter  did  not  claim  that  the  extent  of 
the  powers  of  Congress,  under  the  guaranty  of  republican 
government,  over  the  extension  of  the  elective  franchise 
in  all  the  States,  was  one  of  the  issues  settled  by  the  war. 

i  As  it  requires  two  parties  to  make  a  war,  as  two  to  make  a  case  at  law, 
the  country  at  large  is  under  some  obligation  to  the  Confederacy  for  its  share 
in  procuring  for  it  the  "benefits  "  of  this  decision. 

2  I  do  not  associate  Mr.  G.  T.  Curtis  with  tlie  publicists  of  the  modern 
Nationalist  School,  because  I  understand  him  as  accepting  the  tlieory  of  a 
division  of  sovereignty,  and  not  that  of  its  being  held  by  the  nation  as  a 
mass.  But  Mr.  Curtis  has  the  same  view  of  an  alternative  of  theories  wliich 
was  decided  by  "  ordeal  of  battle."  In  his  "  Discourse,"  etc.  (ante,  pp.  2'M, 
300),  he  remarks  (p.  28),  "  Suppose  that  the  Southern  States  had  succeeded 
in  establishing  for  themselves,  finally,  a  separate  Confederacy,  —  a  firm  and 
distinct  nation.  No  philosophical  historian  and  practical  statesman  would 
thereafter  liave  hesitated  to  say  that  for  any  practical  ])urpose  tlie  Northern 
theory  of  the  Constitution  of  the  United  States  was  gone  forever.  Just  so, 
I  think,  we  ought  to  regard  the  war  as  having  put  an  end  to  the  doctrine  of 
secession."     Compare  ante,  p.  89,  n. 

By  a  parity  of  reasoning,  if  slavery  or  no  siaveri/  was  an  issue,  slave-holding 
should  at  once  have  been  legalized  throughout  the  United  States,  in  case  of 
the  success  of  the  Confederacy. 


THEORY   OF   OUR    NATIONAL   EXISTENCE.  449 

Judge  Redfield's  Argument. 

There  would  seem  to  have  been  no  limit  to  his  compe- 
tency to  determine  the  issues  settled.  However,  he  has 
argued  only  from  his  own  interpretation  of  the  guaranty,^ 
taking  the  war  as  having  indicated  the  particular  States 
to  which  it  should  be  applied,  as  a  consequence  of  its 
having  settled  the  emancipation  issue. 

Even  if  there  were  any  real  parallel  between  a  war,  the 
nature  of  which  excludes  the  idea  of  legal  determination, 
and  an  action  at  law  between  two  private  parties,  who,  by 
the  supposition,  are  under  the  legislative  will  of  a  common 
superior,  by  whose  intervention  the  trial  is  held,  it  is 
evident  that  the  author  of  this  letter,  trying  to  write  as  a 
lawyer,  arrogated  to  himself  individually  the  right  to 
settle,  after  the  supposed  trial  of  the  action,  the  issues 
which  were  to  be  judged. 

It  would  be  consistent  with  the  nature  of  war  to  say  that 
the  prevailing  party  must  have  the  power,  after  its  playsical 
power  has  been  acknowledged  by  the  defeat  of  the  other, 
to  consider  anything  he  may  choose  as  settled  by  it.^  In 
the  present  case,  however,  as  has  been  shown,  there  is  no 
evidence  that  a  majority,  even  of  those  who  maintained 
the  military  action  of  the  Government,  did  so  with  any 
such  ideas  of  the  nature  of  the  issues  ;  and  far  less  can 
it  be  shown  that  there  was  a  majority  of  the  nation,  as  a 
mass,  who  contemplated  such  a  result.^ 

Throughout  this  essay  I  have  endeavored  to  avoid  all 

1  As  Redfield,  in  this  part  of  liis  letter,  recognized  most  explicitly  that  the 
extension  of  the  elective  franchise,  even  for  "  national  elections  "  (a?ife,  p. 
404),  had  been  left  to  the  States,  he  found  it  necessary  to  elaborate  at  some 
length  liis  explanation  of  the  guaranty. 

2  Ante,  p.  3. 

3  Ante,  p.  847,  n.  4.  To  say  nothing  of  the  fact  that  such  issues  had  been 
expressly  repudiated  by  the  House  of  Representatives  when  the  war  began 
{ante,  p.  42,  n.)  and  in  Mr.  Lincoln's  earliest  proclamations  {ante,  pp.  54,  55). 
Considering  how  closely  Judge  Redfield's  and  Mr.  Loring's  pamphlets  {ante, 
p.  269)  accord  with  the  subsequent  measures  of  Congress,  and  with  many 
later  utterances  from  high  places,  it  would  be  only  justice  to  remember 
them  as  leading  exponents  of  the  later  American  constitutional  law. 


450  THE   QUESTION   OF  A   REVOLUTION. 

Mr.  Garfield's  View  of  the  War. 

allusion  to  political  parties,  even  by  naming  them.  It 
must,  however,  be  obvious  that,  as  the  questions  herein 
considered  affect  the  political  obligations  of  each  inhabi- 
tant of  the  country,  it  is  impossible  to  cite  the  words  of 
men  whose  opinions  will  be  received  as  representative 
of  those  of  many  otliers  without  seeming  to  introduce  the 
issues  of  party  contest. 

In  the  course  of  distinguished  service  during  the  last 
fifteen  years,  as  member  of  the  House  of  Representatives, 
Mr.  Garfield,  at  occasions  presenting  issues  of  primary  im- 
portance, had  stated  more  or  less  fully  his  own  theory  of 
our  national  existence.  These  statements  must  now  have 
a  greatly  increased  significance,  as  representative  opinions, 
in  consequence  of  the  elevation  of  their  author  to  the 
highest  office  under  the  Constitution,  depending  on  the 
electoral  votes  of  all  the  States. 

I  have  already  cited  a  passage  from  President  Garfield's 
Inaugural,^  as  illustrating  the  claim  that,  as  a  mode  of 
settling  political  principles,  a  war  may  be  compared  to  an 
action  at  law  settling  a  legal  controversy. 

It  will,  however,  be  only  just  to  the  author  of  the  In- 
augural to  recall  that,  long  before  the  opportunity  to  speak 
with  the  highest  possible  prestige  for  his  opinions,  he  had 
indicated  his  own  acceptance  of  that  basis  which  has  here- 
inbefore been  presented  as  the  only  one  possible  if  the 
theory  maintained  in  this  essay  is  rejected,  —  the  basis 
that,  as  matter  of  historic  fact,  the  theory  of  government 
which  he,  personally,  held  had  become  true  by  revolution. 

I  therefore  cite  his  words  as  illustrating  the  second  of 
the  two  conceptions  of  the  phrase  "  settled  by  the  war."  ^ 

1  To  avoid  possible  misconstruction,  I  may  state  that  the  entire  preceding 
seven  chapters  of  this  essay  were  already  in  type  before  tiie  delivery  of  this 
Inaugural,  March  4,  1B81,  and  that  I  had  no  knowledge  of  the  remarks 
hereinafter  cited  from  Mr.  Garfield's  speeches  in  the  House,  until  after  that 
date. 

2  Ante,  p.  443. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  451 

Mr.  Garfield's  Speech,  Aug.  4,  1876. 

On  the  4th  August,  1876,  the  House  being  in  committee 
of  the  whole  on  the  state  of  the  Union,  Mr.  Garfield,  being 
then  a  representative  from  the  State  of  Ohio,  having  the 
floor,  framed  his  remarks  mainly  as  a  reply  to  those  of  Mr. 
Lamar, ^  a  representative  from  the  State  of  Mississippi. 

After  a  few  introductory  sentences,  Mi-.  Garfield  said:  — 

*'  With  all  my  heart  I  join  with  the  gentleman  in  rejoicing  that 

the  war-drums  throb  no  longer,  and  the  battle-flags  are  furled, 

and  I  look  forward  with  joy  and  hope  to  the  day  when  our  brave 
people,  one  in  heart,  one  in  their  aspirations  for  freedom  and  peace, 
shall  see  that  the  darkness  through  which  we  have  traveled  VA'as  a 
part  of  that  stern  but  beneficent  discipline  by  which  tlie  Great  Dis- 
poser of  events  has  been  leading  us  on  to  a  higher  and  nobler  na- 
tional life. 

"  But  such  a  result  can  be  reached  only  by  comprehending  the 
whole  meaning  of  the  revolution  through  which  we  have  jjassed 
and  are  still  jjassing.  I  say  still  passing  ;  for  I  remember  that  after 
the  battle  of  arms  comes  the  battle  of  history,^  The  cause  that 
triumphs  in  the  field  does  not  always  triumph  in  history.  And 
those  who  carried  the  war  for  union  and  equal  and  universal  free- 
dom to  a  victorious  issue  can  never  safely  relax  their  vigilance 
until  the  ideas  for  which  they  have  fought  have  become  embodied 
in  the  enduring  forms  of  individual  and  national  life.^ 

"  Has  this  been  done  ?     Not  yet. 

"  I  ask  the  gentleman  in  plainness  of  speech  and  yet  in  all  kind- 
ness, is  he  correct  in  his  statement  that  the  conquered  party  accept 
the  results  of  the  war  ?  Even  if  they  do,  I  remind  the  gentleman 
that  accept  is  not  a  very  strong  word.     I  go  further.     I  ask  him 

1  Mr.  Lamar's  remarks  on  the  second  of  the  month  are  found  in  the  Cong. 
Record  for  the  first  session  of  the  forty -fourth  Congress,  beginning  p.  5087. 
Mr.  Garfield's  reply  begins  on  p.  5180  of  same  report.  The  speech  was, 
as  I  have  been  informed,  printed  as  a  pamphlet,  with  the  title,  "  Can  the 
Democratic  Party  be  safely  intrusted  with  the  Administration  of  the  Govern- 
ment ?  "  Passages  from  it  appeared  in  most  of  the  "  Lives  "  of  the  suc- 
cessful candidate  pubUshed  before  the  election  in  1880,  and  a  long  extract 
is  given  in  Chips  from  the  White  House,  by  J.  Chaplin. 

2  Compare  the  opening  remarks  of  the  first  chapter,  ante,  pp.  2,  3. 

3  Compare  the  quotation  from  Mr.  Jameson,  ante,  p.  367. 


452  THE   QUESTION   OF   A   REYOLIJTIOX. 

Other  Writers  on  the  War. 

if  the  democratic  party  have  adopted  the  results  of  the  war.^  Is  it 
not  asking  too  much  of  human  nature  to  expect  such  unparalleled 
changes  to  be  not  only  accepted,  but,  in  so  short  a  time,  adopted  by 
men  of  strong  and  independent  opinions? 

"  The  antagonisms  which  gave  rise  to  the  war  and  grew  out  of 
it  were  not  born  in  a  day,  nor  can  they  vanish  in  a  night." 

But  as  this  is  a  political  question,  in  distinction  from  a 
legal  one,  the  right  to  discuss  it  cannot  be  altogether  en- 
grossed by  those  who  may,  as  statesmen,  judges,  or  private 
jurists,  think  themselves  speciallj^  qualified.  Others,  not 
professing  to  have  had  juristical  training,  but  as  fully 
qualified  hj  education  and  civic  virtues  to  consider  any 
question  belonging  to  history  and  political  philosophy 
as  are  any  members  of  the  judiciary,  have  declared  the 
theory  for  which  they  arrogate  the  names  of  "  nationalism  " 
and  "  unionism,"  settled  by  the  war.^  It  may  well  be  that, 
from  the  less  technical  character  of  their  speeches  or  writ- 
ings, their  arguments  will  reach  a  much  wider  circle  of 
readers  than  the  best  reputed  legal  treatises  can  command, 
and  some  of  them  may  have  an  audience  abroad  among 
those  who  have  no  other  acquaintance  with  the  history  of 
our  public  law. 

1  It  will  be  noticed  that  liere  the  speaker  used  the  terms,  "  the  conquered 
party  "  and  "  tlie  democratic  party,"  as  equivalent  terms  :  and  from  this  pas- 
sage and  others  to  be  cited  liereafter,  it  will  appear  that  he  placed  all  his 
political  opponents,  irrespective  of  residence  in  States  north  or  south,  in  the 
same  category  in  respect  to  what  he  here  describes  as  "  a  revolution,"  and 
"  unparalleled  changes,"  for  opposition  to  which,  as  the  adherents  of  an  old 
regime,  he  charges  them  with  treason,  while  he  claims  for  himself  and  his 
political  associates  the  position  of  successful  revolutionists.  The  passages 
which  in  Mr.  Garfield's  remarks  follow  the  above  citation  are  also  an  illus- 
tration of  the  theory  of  a  revolution.  They  will  be  found  hereinafter  cited 
under  a  somewhat  different  view  of  the  same  question  {post,  p.  465),  as  illus- 
trating "  the  war  of  ideas." 

'^  To  say  nothing  of  the  name  "  imperialism."  Compare  Batcman's  Politi- 
cal and  Constitutional  Law,  §§  101-111.  I  do  not  concede  the  justice  of 
this  exclusive  claim  to  the  terms  "  nationalism  "  and  "  unionism,"  because  I 
hold  that  national  existence  is  fully  realized  under  that  theory  which  recog- 
nizes the  States  in  union  as  the  sovereign. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  453 

Limitations  of  the  ordinary  View. 

It  would  be  impossible  to  distinguish  any  one  or  more 
publications  with  a  view  to  exhibit  the  train  of  thought  or 
method  of  argument  adopted  by  all  as  a  class.  The  writers 
referred  to  may,  in  a  general  way,  be  described  as  those 
who  maintain  that,  whether  the  theory  which  they  approve 
was  or  was  not  true  as  fact  before  the  year  1861,  it  has,  in 
consequence  of  events  after  that  date,  now  become  estab- 
lished as  a  fundamental  fact,  enlarging  or  confirming  the 
powers  of  the  general  Government,  and  subordinating 
those  of  the  States  in  some  undefined  degree.^ 

These  writers  may  or  may  not  appear  to  their  readers  to 
indicate  a  recognition  of  anything  like  a  revolutionary 
change  ;  and,  if  they  do  this  in  any  degree,  it  does  not  ap- 
pear to  be  upon  the  principle,  already  herein  accepted,  that 
any  political  change,  if  it  be  matter  of  fact,  is  to  be  accepted 
simply  as  matter  of  fact. 

The  writers  referred  to  do  not  appear  to  have  thought 
of  showing  that  the  construction  of  the  Constitution,  as 
law,  which  they  personally  hold  to  be  correct  should  be 
now  accepted  because  the  action  of  the  general  Govern- 
ment, following  its  military  success  and  made  possible  by 
it,^  can  be  defended  upon  that  construction  and  upon  no 
other.  This  it  would  be  perfectly  legitimate  for  them  to 
do,  and  in  accordance  with  the  method  followed  in  this 
essay. 

1  As  an  example  of  the  history  accepted  by  writers  of  this  class,  Mr.  R. 
Frothingham's  Rise  of  the  Republic  of  the  United  States,  p.  3,  may  be 
cited  :  "  This  element  of  union  has  met  triumphantly  every  trial.  Its  great- 
est crisis  by  far  was  the  late  appeal  to  the  only  jurisdiction  between  nations, 
and  fragments  of  nations,  the  ultima  ratio  refjum,  —  the  tribunal  of  force. 
The  judgment  then  rendered,  after  a  field  of  war  unparalleled  in  the  annals 
of  domestic  strife,  is  that  these  States  and  communities  are  associated  in  a 
bond  of  union  that  is  indissoluble ;  that  the  supreme  law  of  the  land  or- 
dained in  the  Constitution  is  paramount ;  that  the  Government,  acting  under 
this  law,  has  the  right  and  power  to  vindicate  its  authority  by  force ;  and 
that  itself  is  the  judge  of  the  nature  and  extent  of  its  own  powers."  The 
author  here  refers  to  Redfield's  letter,  and  to  Draper's  Civil  Policy  in  Amer- 
ica, p.  85. 

2  Ante,  pp.  3,  4,  322. 


454  THE   QUESTION   OP  A  REVOLUTIOK 

Ordinary  Conceptions  as  to  the  War. 

Nor  do  these  writers  offer  an}^  proof  that  the  military 
success  of  the  general  Government,  or  any  other  demon- 
stration of  its  political  purposes  indicates  that  "  the 
bulk  of  the  community,"  or  "  the  people  overwhelmingly 
united,"  ^  have  determined  that  a  certain  view  or  theory 
as  to  the  seat  of  sovereignty  shall  now  be  accepted,  what- 
ever may  have  been  the  actual  investiture  of  sovereignty 
before  the  war.  They  do  not  attempt  to  show  even  that 
a  certain  opinion  on  this  subject  was  embraced  by  a  ma- 
jority of  those  who  supported  the  Government  in  resisting 
secession  as  rebellion,  nor  that  the  Reconstruction  mea- 
sures were  approved  by  a  majority  even  of  the  inhabitants 
of  the  Northern  States.  Their  argument,  when  reduced 
to  its  elements,  is  that  a  certain  theory  must  be  now  rec- 
ognized as  established  because  they,  who  individually  think 
it  ought  to  be  received,  Avere,  though  comparatively  per- 
haps only  a  handful,  among  those  who  supported  the  pre- 
vailing combatant.^ 

It  might  be  inferred  from  the  language  of  some  of  these 
writers  that  there  had  been  two  political  doctrines  as  to 
the  best  foundation  of  government  for  this  country,  and 
two  opinions  as  to  the  moral,  economical,  and  political  ad- 
vantages or  disadvantages  of  negro  slavery  ;  that  these  two 
doctrines  and  two  opinions  were  perfectly  well  apprehended 
by  the  people  of  the  country.  North  and  South,  as  a  mass 
of  men,  women,  and  children,  without  discrimination  of 
any  bodies  of  electors  or  voters  for  State  or  general  gov- 
ernments as  actually  holding  political  power ;  and  that, 
further,  there  had  been  a  general  understanding  among 
this  people,  as  a  mass,  North  and  Soutli,  that  there  should 

1  Ante,  p.  347. 

'^  Or,  their  argument  is  tliat  "  tlie  people,"  as  a  whole,  must  have  sanc- 
tioned certain  measures,  because  all  persons  wlio  (lisai)pr<)ve  such  measures 
are  not  to  be  considered  as  ])art  of  such  "  people."  Compare  the  remarks  of 
Mr.  Garfield  hereinafter  cited  {post,  p.  470)  from  the  continuation  of  his 
speech  of  Aug.  4,  187G. 


THEORY   OP   OUR   NATIONAL   EXISTENCE.  455 

War  as  Evidence  of  past  Fact. 

be  a  war,  in  which  the  Government  of  the  Confederated 
States  should  represent  one  doctrine  of  government  and 
one  opinion  of  slavery,  and  the  general  Government  should 
represent  the  other  doctrine  and  opinion,  and  that  the  doc- 
trine and  opinion  represented  by  the  conqueror  should  be 
accepted  by  the  whole  people,  as  a  mass.  North  and  South, 
for  the  future,  as  the  only  basis  of  political  existence  :  the 
choice  between  the  two  doctrines  and  two  opinions  being 
made  to  depend  upon  a  bloody  war  of  four  years'  dura- 
tion, though  it  might,  by  a  like  general  understanding,  have 
been  made  to  depend  on  a  game  of  cards  or  the  turning 
up  of  a  cent. 

But,  however  confidently  any  disciples  of  this  school  may 
present  their  own  view  of  constitutional  jurisprudence  as 
something  which  may  be  known  by  the  victory  of  one  army 
and  the  defeat  of  another,  they  do  not  relinquish  in  the 
least  their  inconsistent  and  now  superfluous  claim  for  a 
basis  for  those  views  in  the  earlier  political  history. 

In  fact,  it  would  appear  from  the  method  of  demonstra- 
tion adopted  by  all  of  this  political  school,  whether  speak- 
ing as  judges  of  the  Supreme  Court,  statesmen,  private 
jurists,  or  historians,  that  the  political  events  Avhich  have 
occurred  since  1861  are  not  only  taken  by  them  as  indicat- 
ing the  present  and  prospective  possession  of  sovereignty 
b}^  the  nation  as  a  mass,  solely  represented  by  a  "National  " 
government,  in  respect  to  which  the  States  are  to  be  sub- 
ordinate corporations,  but  as  being  testimony  that  the  same 
possession  of  sovereignty  existed  wdien  the  Constitution 
was  adopted  in  1787.^ 

From  the  language  of  the  greater  number  of  these  pub- 

1  I  am  not  aware  that  anybody,  thus  far,  has  claimed  that  the  historical 
question  wliether  negro  slavery  had  ever  been  lawful  in  the  colonies  and 
States  was  one  of  the  issues  settled  by  the  war.  Though  some  seem  in- 
clined to  regard  their  own  interpretation  of  the  Preamble  of  the  Declaration 
of  1776,  in  the  sense  of  a  legislative  abolition  decree,  as  one  of  the  matters 
80  settled. 


456  THE  QUESTION   OF  A  REVOLUTION. 

Of  the  War  as  a  War  of  Ideas. 

licists  it  mio;lit  be  inferred  tliat  it  had  been  understood  and 
agreed  among  all,  North  and  South,  not  merely  that  the 
issue  in  the  field  should  determine  for  the  future^  the  po- 
litical fact  for  the  whole  country,  but  that  the  same  appeal 
to  the  God  of  battles  should  settle  which  of  the  two  theories 
had  the  support  of  history  before  1861 ;  that  is,  which  view 
of  facts  from  1776  to  1861  should  thereafter  be  held  as  the 
genuine  one.-' 

The  simplicity  in  this  respect  of  some  of  these  writers 
on  public  law  suggests  a  return  to  that  mediteval  jurispru- 
dence under  which  the  honor  of  a  woman,  or  the  loyalty 
of  a  man,  or  any  question  of  past  fact,  was  determinable 
by  the  ordeal  of  fire  or  by  that  of  battle,  b}'  champion  or 
in  person. 

So  far  as  publicists  of  this  class,  whether  they  claim  to 
speak  as  statesmen,  lawyers,  or  historians,  attempt  to  avoid 
these  puerilities,  they  do  it  by  resorting  to  others. 

They  argue  that  the  prevailing  party,  because  it  was  the 
party  which  actually  prevailed,  must  have  represented  ideas 
which,  being  forces  of  nature  or  laivs  of  nature  in  that 
sense,  must  always  have  had,  in  themselves,  authority  as 
municipal  law  derived  from  political  sources,  even  though 
the  written  Constitution,  the  earlier  laws  of  Congress,  the 
laws  of  the  several  States,  and  the  political  and  social 
habitudes  of  the  people  might  have  been  contrary  to  these 
ideas.^ 

Hence  it  follows,  according  to  their  reasoning,  that, 
however  inconsistent  the  action  of  the  general  Govern- 
ment may  have  been  with  that  which  was  to  have  been 
expected  by  ordinary  deduction  from  the  Constitution  and 
general  principles  of  public  law,  there  was  no  revolution- 
ary action  or  usurpation  on  its  part^  in  treating  the  at- 

J  Compare  ante,  p.  99,  as  to  the  constant  tendency  to  confound  doctrine 
and  history  in  these  questions. 

2  Compare,  ante,  p.  278.  ^  Ante,  p.  107. 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  457 

Of  Nationalism  as  a  Law. 

tempted  secession  as  the  rebellion  of  States  in  their  political 
capacity.  The  Government,  while  in  appearance  actively 
carrying  out  certain  measures,  as  if  in  exercise  of  indepen- 
dent political  volition,  was  really,  according  to  their  argu- 
ment, only  unconsciously,  or  at  least  passively,  exhibiting 
the  operation  of  forces  all  alonsf  concealed  beneath  consti- 
tutions  and  political  arrangements  which  were  now  for  the 
first  time  exhibiting  their  necessary  though  secret  unison 
with  the  "  higher  law."  ^ 

It  may  be  well  to  notice  that  this  idea  or  law  of  nation- 
alism^ unionism,  ijjijyeriaUsm,  or  whatever  else  it  may  be 
called,  has  not  hitherto  been  presented  by  anybody  as 
known  from  the  actual  succession  of  political  events  in 
this  country.  It  would  be  perfectly  reasonable,  and  in 
accordance  with  the  distinction  already  herein  made,^  for 
non-professional  advocates  of  the  theory  to  argue  that  on 
no  other  basis  than  this  can  the  action  of  the  Government 
since  1861  ^  be  known  as  legitimate,  or  as  anything  else 
than  usurpation.  They  might  say  that,  as  matter  of  fact 
and  history,  submission  to  this  action  has  been  enforced 

1  This  corresponds  with  the  fetish  ideal  of  the  Constitution  {ante,  pp.  305, 
321,  339,  357)  ;  for  the  supposed  deity  must  have  its  choir  of  self-consti- 
tuted priests  to  proclaim  its  oracles. 

The  position  above  described  is  totally  distinct  from  the  recognition  that 
any  holder  of  supreme  political  power  must  ultimatel}' come  to  grief  who 
does  not  conform  his  legislation  to  the  observed  "  laws  of  nature."  This 
point  is  well  stated  in  Argyll's  Reign  of  Law  (p.  326,  Ch.  VII.,  "  Law  in 
Politics"),  and  the  legitimate  recognition  of  such  a  "reign  of  law  "  is  illus- 
trated in  the  introductory  remarks  by  Mr.  Garfield,  on  a  bill  for  taking  the 
Ninth  Census,  Dec.  16,  1869,  2d  Sess.  41st  Congress,  Globe,  178.  But,  here, 
the  question  is  whether  one  citizen  may  be  treated  as  a  traitor  by  another, 
because  he  may  not  think  it  advisable  to  exercise  his  political  rights,  under 
a  constitution,  in  accordance  with  doctrines  which  the  other  regards  as  laws 
of  nature,  or  "  decrees  of  the  Almighty."     Compare,  ante,  p.  367. 

2  Ante,  p.  348. 

3  Either  in  suppressing  the  rebellion,  as  the  rebellion  of  States  in  the 
Union  (atite,-p.  354),  or  in  abolishing  slavery  in  the  slaveholding  States  of 
the  Confederacy,  while  recognizing  them  as  possessors  of  the  same  power 
over  personal  status  which  was  held  by  every  other  State.     (Ante,  p.  200.) 


458  THE   QUESTION   OF   A   REVOLUTION. 

Of  Nationalism  as  a  Law. 

under  this  idea,  and,  therefore,  it  must  now  be  accepted 
in  theory,  even  though  the  judiciary  and  the  jurists  should 
have  failed  in  their  defence  of  that  action  under  any  of 
the  methods  ordinarily  known  in  courts  of  law  for  de- 
termining any  action  as  legitimate  under  written  consti- 
tutions.i 

But,  in  contrast  to  this  method,  these  writers  present 
their  solution  of  the  problem  as  a  deduction  from  prin- 
ciples assumed  a  jyrlori. 

They  present  what  they  call  nationalism,  unionism,  and 
empire,  as  a  political  force  necessarily  inherent,  at  the  pres- 
ent clay  at  least,  in  all  masses  of  population  occupying 
some  presupposed  territory,^  which  like  the  will  of  an  ac- 
tual person  claiming  homage  or  allegiance,  unifies  or  con- 
centrates political  powers  formerly  held  separatel}^,  or  as 
antagonistic,  within  the  same  territory. 

From  the  reputation  for  attainment  in  physical  science 
which  some  writers  of  this  school  can  justly  claim,  it  is 
only  fair  to  infer  that  they  do  not  themselves  regard  this 
principle  of  theirs  as  an  a  priori  assumption,  but  as  one  of 
those  "  laws,"  as  they  are  accustomed  to  term  them,  which 
are  generalizations  of  observed  facts  ;  that  is,  modes  of  ac- 
tion in  nature.  They  would  probably  say  that  they  know 
that  this  "law,"  which  they  call  "nationalism,"  etc.,  exists 
as  a  force  controlling  the  wills  of  men  in  their  political  ac- 
tion, from  a  generalization  of  successive  events  in  European 
political  history.  They  would  probably  point  to  the  fact  that 
what  are  now  called  "  nations,"  that  is,  populations  more  or 
less  homogeneous  in  race  and  connected  by  a  common  lan- 

1  Ante,  pp.  348,  36L 

2  Tlie  territory  to  be  recognized  as  the  place  for  tlie  destined  nation  is 
supposed  by  such  writers  to  be  determined,  not  by  antecedent  political 
arrangements  (for  under  their  view  these  must  be  consequences  and  not 
causes),  but  by  economical  considerations,  based  on  geogriii)liical  and  topo- 
graphical advantages  or  disadvantages.  Sec  Dr.  Draper's  political  treatises. 
Compare,  ante,  p.  98,  note. 


THEORY  OF   OUR   NATIONAL  EXISTENCE.  459 

Of  Nationalism  as  a  Law. 

guage,  occupying  a  relatively  large  territory  under  a  unitary 
political  system  of  some  sort,  exist  at  the  present  time  where 
a  few  centuries,  or  even  decades,  ago  a  divided  or  relatively 
fractional  arrangement  of  the  same  lands  and  populations, 
in  respect  to  political  existence,  had  prevailed.^ 

So  far  as  any  of  these  writers,  whether  jurists  or  physi- 
cists, present  any  argument  in  applying  their  supposed 
"  idea,"  it  is  based  entirely  on  the  double  meaning  of  the 
term  "a  law."^  They  assume  that  what  they  recognize 
as  an  "  idea,"  or  have  conceived  as  a  laiv  in  the  sense  of  an 
observed  fact  or  mode  of  action,  that  is,  a  law  in  the  sec- 
ondary sense,  shall  be  understood  by  everybody  as  a  law 
in  the  primary  sense,  that  is,  as  a  rule  of  action.  They 
conceive  of  this  law  as  one  of  political  authority,  acting 
upon  each  individual  constituent  of  the  several  masses  of 
population,  which,  with  the  territory  occupied,  should  be 
"  a  nation,"  and  making  it  the  political  duty  of  each,  which 
it  is  treason  to  deny,  to  abandon  all  political  combination 
in  and  all  allegiance  to  pre-existing  smaller  political  per- 
sonalities, and  to  submit  themselves  to  some  more  unified 
or  consolidated  form  of  political  existence,  distinguishable 
by  grander  geographical  conditions. 

It  is,  however,  unfortunate  for  writers  of  this  class  that 
the  history  of  political  society  in  other  times  and  countries 
does  not  support  the  generalization  which  they  call  "law," 
that  is,  law  in  the  secondary  sense  of  the  word,  as  a  mode 
of  existence  or  of  action.  In  point  of  historic  fact,  the 
genesis  of  modern  nations  has  not  taken  place  in  conse- 

1  "  Political  integration,"  is  a  term  used  by  Herbert  Spencer  as  applica- 
ble to  this  process. 

2  "  Words,  which  should  be  the  servants  of  thought,  are  too  often  its 
masters ;  and  tliere  are  very  few  words  which  are  used  more  ambiguously, 
and  tlierefore  more  injuriously,  than  tiie  word  '  law.'  ...  It  matters  little  in 
whicli  of  these  senses  it  is  used,  provided  the  distinctions  between  them  are 
kept  clearly  in  view,  and  provided  we  watch  against  the  fallacies  which 
must  arise  when  we  pass  insensibly  from  one  meaning  to  another." — Argyll's 
Reign  of  Law,  5th  Am.  Ed.  p.  03.     Compare,  ante,  p.  97. 


460  THE    QUESTION   OF   A   REVOLUTION, 

History  of  Nationalism  as  a  Fact. 

qiience  of  any  "idea"  or  "yearning"  in  populations,  com- 
pelling them  to  become  unified  or  massed  together  under 
one  consolidated  government.  The  unification  has  taken 
place,  in  times  more  or  less  recent,  but  always  by  a  process 
exactly  the  reverse  of  that  which  these  supporters  of  "  na- 
tionalism "  have  imagined  as  a  basis  for  their  generalization. 
As  matter  of  history,  the  political  change,  from  a  structural 
separatism  to  a  structural  nationalism,  has  been  effected  by 
the  action  of  some  distinct  and  relatively  minor  political 
organization,  employing  force,  fraud,  diplomacy,  intrigue, 
d3'nastic  marriages,  etc.,  in  absorbing  or  adding  to  itself  its 
weaker  political  neighbors  as  the  parts  constituting  the 
personaUty  finally  known  as  a  nation. 

As  matter  of  historic  fact,  it  has  always  been  the  pre- 
existing smaller  political  personality,  or  state,  that  has 
brought  about  the  later  existence  of  the  nation  as  a  mass 
of  population  in  unity,  and  liever  a  pre-existing  mass  of 
population  in  unity  as  the  nation  that  has  brought  about 
the  later  existence  of  subordinate  smaller  political  person- 
alities, or  states. 

This  has  been  exemplified  in  every  country  in  Europe, 
from  the  first  decline  of  feudal  institutions  founded  on  the 
ruins  of  the  Roman  Empire,  to  the  latest  political  arrange- 
ments.^ 

1  In  Great  Britain  from  the  time  of  tlie  Anglo-Saxon  heptarchy,  in  the 
absorption  of  Wales,  Ireland,  and  Scotland;  in  France  under  Louis  XI., 
Henry  IV.,  and  their  successors ;  in  Spain  from  the  time  of  Ferdinand  and 
Isabella.  So  in  Italy  by  the  history  of  the  house  of  Savoy,  and  in  Germany 
by  that  of  Prussia,  —  mostly  within  the  last  half  century.  "  But  in  both  it 
was  by  the  advance  of  an  existing  state,  which  extended  itself  to  include 
wider  and  wider  territories,  and  gave  to  them  its  organization,  tliat  the 
unity  of  the  nation  was  brouglit  about.  And  this  was  done  with  little  or  no 
change  in  the  internal  constitution  of  the  growing  kingdom,  little  or  no 
movement  towards  a  resettlement  of  society  on  democratic  foundations.  In 
the  constitution  of  the  North  German  Confederation  and  the  new  German 
Empire  there  is  no  mention  and  little  indirect  recognition,  of  those  '  Funda- 
mental Rights  of  the  German  people,'  on  which  the  Frankfort  Parliament  of 
1848-1849  spent  so  much  precious  time  and  toil."  — Bryce's  Holy  Koman 
Emi>ire,  437. 


THEORY   OF    OUR   NATIONAL   EXISTENCE.  461 

Of  Emancipation  under  an  Idea  as  Law. 

It  is  also  remarkable  that  in  the  very  latest  instances, 
and  while  this  theory  of  nationalism  as  an  "idea,"  or  force 
of  nature  operating  of  necessity,  has  been  most  loudly  pro- 
claimed and  made  the  doctrine  of  a  school,  its  advocates 
have  generally  been  found  resisting  the  actual  unification, 
when  it  was  in  progress  under  the  only  method  by  which 
it  had  ever  been  known  to  take  place  before.  They  saw 
their  desired  end  in  the  process  of  accomplishment  by  the 
only  means  which  experience  had  shown  to  be  practicable  ; 
but  they  opposed  it  because  it  was  not  brought  about  in 
accordance  with  their  theory,  that  is,  in  some  unexplained 
manner,  incompatible  with  the  nature  of  things.^ 

It  is  by  a  similarly  deceptive  use  of  the  double  meaning 
of  the  word  "  law  "  that  so  many  have  justified  for  them- 
selves the  action  of  the  Government  in  respect  to  negro 
slavery,  not  so  much  in  the  matter  of  emancipation  during 
the  war  2  as  in  the  Reconstruction  policy  followed  in  secur- 
ing the  assent  of  the  ten  States  of  the  Confederacy  to  the 
Thirteenth  and  Fourteenth  Amendments,  and  in  forcing 
upon  them  the  admission  of  the  emancipated  negroes  to 
suffrage.^ 

1  Compare  Lectures  on  German  Thought,  by  K.  Hillebrand,  pp.  283-286, 
remarks  on  Germans,  and  the  political  party  called  "  Little  Germany."  I 
claim  that  while  the  course  of  events  in  this  country,  since  1861,  has  illus- 
trated the  process  by  which  all  national  consolidation  had  previously  taken 
place,  it  is  also  a  direct  contradiction  of  the  theoretical  nationalism  of  these 
publicists.  It  was  the  States  remaining  in  their  voluntary  union,  not  a  "Na- 
tional "  government,  not  an  abstract,  —  "  tiie  Union,"  —  distinguished  from 
States  united,  and  far  less  the  people  or  nation  as  a  mass  of  individuals, 
who  by  force  established  their  exclusive  possession,  in  union,  of  all  sover- 
eignty over  populations  disposed  to  resist  it.     Ante,  pp.  1-51,  354,  n.  2. 

■^  The  emancipation,  so  far  as  it  was  independent  of  the  Fifteenth 
Amendment,  may  be  popularly  supposed  to  be  due  to  an  exercise  of  a 
"  war-power  "  held  by  the  executive.  Compare,  ante,  p.  199.  As  other  arti- 
cles in  the  North  American  Review  on  this  subject  have  herein  been  noticed 
(ante,  p.  347),  a  still  later  assertion  of  the  validity  of  the  Emancipation 
Edict,  in  an  article  by  Mr.  Aaron  F.  Ferris,  December,  1880,  should  be  also 
mentioned. 

3  Ante,  pp.  217,  256. 


462  THE   QUESTION   OF   A   REVOLUTION. 

Of  Ideas  regarded  as  Laws. 

Having  recognized  what  they  call  an  "  idea,"  as  a  con- 
ception based  on  an  observed  succession  of  facts  in  the  his- 
tory of  general  jurisprudence,  that  is,  a  law  in  the  secondary 
sense,  indicating  the  increase  of  equality  among  all  private 
persons  in  relation  to  the  state  and  the  decline  of  all  forms 
of  involuntary  servitude,  —  some  persons  present  this 
"  idea  "  as  a  Jmo  in  the  primary  sense  of  a  rule  of  action, 
which,  like  the  "  idea  "  or  "  law  "  of  nationalism  or  union- 
ism, may  have  coercive  effect  independently  of  the  volition 
of  any  possessor  of  political  force. 

But,  even  if  it  be  admitted  that  such  idea  or  principle, 
or  law  in  the  sense  of  an  observed  mode  of  action,  is  dis- 
tinguishable by  the  philosophical  historian  in  the  history 
of  social  institutions,^  it  is  evident  from  the  nature  of  politi- 
cal existence  —  which  is  nothing  else  than  the  manifestation 
of  personal  will,  the  will  of  one  or  of  many  actual  human 
beings^  —  that  such  a  law  imposes  no  political  obligation 
upon  anybody.  By  undertaking  to  enforce  it,  a  govern- 
ment must  contradict  the  position  that  it  is  such  a  Imv  or 
supposed  necessary  condition  of  things  ;  for  a  law  that 
has  to  be  enforced  by  a  political  sovereign  cannot  be  a  law 
of  nature  or  observed  condition  of  existence.^  The  so- 
called  "  laws  "  discovered  by  Galileo,  Kepler,  and  Newton 
acted  for  them  and  for  all  the  popes,  princes,  and  peoples  of 

1  Tlie  author  of  the  Reign  of  Law  distinguishes  five  secondary  senses  of 
the  word  law ;  tlie  fifth, —  "As  applied  to  abstract  conceptions  of  tlie  mind, 
—  not  corresponding  witli  any  actual  phenomena,  but  deduced  therefrom  as 
axioms  of  thouglit,  necessary  to  our  understanding  of  them.  Law,  in  this 
sense,  is  a  reduction  of  the  phenomena,  not  merely  to  an  order  of  facts,  but 
to  an  order  of  thought."  5th  Am.  Ed.  p.  65,  see  also  p.  108  of  the  same. 
Undoubtedly,  an  idea  or  law  of  nationalism  or  unionism,  in  this  sense,  may 
be  recognized.  So,  too,  the  famed  "  social  compact "  is  a  fact,  regarded  as 
a  law  in  this  sense,  and  the  same  may  be  said  of  the  doctrine  of  natural 
equality.     Compare  Jameson's  Const.  Law,  §§  G5-67. 

2  Compare  Dr.  Maine,  ante,  p.  329,  note. 

3  "  Force  is  the  root-idea  of  law  in  its  scientific  sense."  —  Reign  of  Law, 
p.  O'J. 


THEORY   OF   OTJB,   NATIONAL   EXISTENCE.  463 

Of  a  War  of  Ideas. 

their  times,  whether  the  popes,  princes,  and  peoples  ordered 
them  to  act  or  not. 

In  apph'ing  their  "ideas"  or  "laws"  to  the  circum- 
stances of  this  country  during  the  last  twenty  years,  the 
publicists  of  this  school  represent  the  general  Government 
as  apf)lying  or  enforcing  these  ideas  or  laws  as  the  rule  of 
a  known  political  superior,  which  it  was  criminal  or  trea- 
sonable on  the  part  of  any  States  or  individual  citizens  to 
disobey.^ 

To  bring  about  the  required  connection  between  these 
ideas,  or  so-called  "laws,"  and  the  political  authority  rep- 
resented by  the  general  Government,  these  publicists  im- 
agine the  ideas  themselves  as  the  actual  parties  in  a  war 
against  opposite  ideas  of  slavery  and  separate  State  sover- 
eignty, —  a  war  which  in  appearance  only  was  carried  on 
by  that  government  as  in  the  ordinary  case  of  a  holder  of 
political  power  resisting  an  armed  rebellion.^ 

It  is  common  with  them  to  speak  of  the  war  as  "  a  war 
of  ideas,"  and  of  the  issue  of  the  war  as  determining  the 
moral  and  political  status  of  two  classes  of  the  inhabitants 
of  this  country,  regarded  as  subjects,  partisans,  or  allies  of 
one  or  the  other  of  these  two  sets  of  ideas,  without  refer- 
ence to  any  question  of  pre-existing  allegiance  to  some 
political  superior. 

1  Ante,  pp.  271,  278. 

2  In  the  course  of  a  debate,  to  be  noticed  hereinafter,  Mr.  Garfield  said, 
June  27,  1879,  46th  Cong.  1st  Sess.  Record,  2390  :  "  The  dogma  of  State 
sovereignty,  in  alliance  with  chattel  slavery,  finally  made  its  appeal  to  the 
court  of  last  resort,  where  the  laws  are  silent,  and  where  kings  and  nations 
appear  for  judgment.  In  that  awful  court  two  questions  were  tried,  —  Shall 
slavery  live  1  and  Is  a  State  so  sovereign  that  it  may  nullity  the  laws,  and 
destroy  the  Union  1  Those  two  questions  were  tried  in  the  thousand  battle- 
fields of  the  war;  and  if  war  ever  '  legi-slates,'  as  a  leading  Democrat  once 
wisely  affirmed,  then  our  war  legislated  finally  upon  those  subjects,  and 
determined  beyond  all  controversy  that  slavery  never  should  again  live  in 
tliis  republic,  and  that  there  is  not  sovereignty  enough  in  any  State  either 
to  destroy  the  Union  or  nullify  its  laws."  In  this  incongruous  mixture  of 
images,  war  figures  both  as  judge  and  legislator. 


464  THE   QUESTION   OF  A   REVOLUTION". 

Of  a  War  of  Ideas. 

Under  this  view  of  the  nature  of  the  war,  the  citizens  of 
the  States  of  the  Confederacy  are  to  be  deemed  rebels  or 
traitors,  not  because  they  rose  in  arms  against  a  political 
sovereign,  but  because  the  armies  representing  slavery  and 
separate  State  sovereignty  were  defeated  by  armies  repre- 
senting the  antagonistic  ideas. 

It  is  therefore  perfectly  natural,  or  logical,  for  these 
persons  to  regard  as  rebels  and  traitors  any  citizens  of  a 
Northern  State  who  disapproved  of  the  emancipation  policy, 
or  who  believed  that  the  Constitution  derived  its  authority 
from  the  States  in  union,  even  though  they  had  support- 
ed the  general  Government  in  maintaining  its  constitu- 
tional authority  .1 

From  such  premises  it  would  be  natural  to  conclude 
that,  if  the  military  result  had  been  different,  not  only 
would  the  Confederate  States  have  achieved  their  inde- 
pendence, but  the  people  of  the  Northern  States  —  or  a 
portion  of  them,  easily  distinguished  by  their  professed 
devotion  to  "  ideas  "  —  might  have  been  legally  punishable 
by  the  conquerors  as  traitors. 

But  as  this  would  be  a  self-stultifying  possibility,  many 
have  tried  to  make  out  a  connection  between  their  own 
ideas  of  nationalism  or  unionism,  of  liberty  of  personal  con- 
dition, political  equality,  etc.,  and  the  legislative  will  of  a 
possessor  of  political  power,  by  assuming  that,  as  matter 
of  history,  these  ideas  had  been  proclaimed  with  legislative 
intent  by  the  people  or  nation,  as  sovereign,  at  the  time  of 
the  Revolution  of  1776,  in  advance  of  any  legislative  action 
of  any  State  or  F'ederal  government.  They  refer  to  the 
preamble  of  the  Declaration,  as  containing  a  rule  of  action 
binding  and  loosing  with  the  force  of  law,  though  they 
admit  that  it  had  been  constantly  violated  from  that  mo- 
ment, by  the  constitutions  of  the  States,  the  constitution 

^  Compare  }>ost,  p.  468  and  the  citations  to  be  given  liereinafter  from 
Mr.  Garfield's  speecli  of  Aug.  4,  1876. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  465 

Mr.  Garfield  on  the  War  of  Ideas. 

of  the  United  States,  and  the  laws  proceeding  from  the 
general  and  State  governments.^ 

The  most  recent  illustration  of  this  deduction  of  legal 
principle  is  to  be  found,  somewhat  fantastically  modified, 
in  the  Inaugural  of  President  Garfield,  in  a  sentence  imme- 
diately following  those  already  cited,  ante,  p.  400. 

"  The  will  of  the  nation,  speaking  with  the  voice  of  battle,  and 
through  the  amended  Constitution,  has  fulfilled  the  great  promise 
of  1776,  by  proclaiming  'liberty  throughout  the  land  to  all  the  in- 
habitants thereof.'  '*^ 

In  continuing  his  remarks  (awie,  p.  452)  in  the  House, 
on  the  4th  August,  1876,  Mr.  Garfield  said :  — 

"Mr.  Chairman,  great  ideas  travel  slowly,  and,  for  a  time,  noise- 
lessly as  the  gods,  whose  feet  were  shod  with  wool.  Our  war  of 
independence  was  a  war  of  ideas,  of  ideas  evolved  out  of  two  hun- 
dred years  of  slow  and  silent  growth.  When,  one  hundred  years 
ago,  our  fathers  announced  as  self-evident  truths  the  declaration 
that  all  men  are  created  equal,  and  the  only  just  power  of  govern- 
ments is  derived  from  the  consent  of  the  governed,^  they  uttered  a 

1  This  idea  may  be  traced  in  many  of  Mr.  Lincoln's  addresses,  as  can  be 
seen  in  any  of  the  memoirs  wliich  have  been  written.  Compare  Mr.  Lowell's 
expressions.  {Ante,  p.  27L)  Mr.  Boutwell,  in  a  speech  at  Weymouth,  July 
4,  1865,  said  that  the  government  had,  till  then,  proved  a  failure,  because  it 
did  not  agree  with  the  Preamble  to  the  Declaration. 

2  Those  who  are  familiar  with  the  minor  incidents  of  the  Revolution  will 
suppose  that  the  record  of  the  promise  referred  to  was  made,  when  the  Dec- 
laration was  proclaimed,  by  the  ringing  of  a  bell,  popularly  known  as  "  the 
Liberty  Bell,"  in  the  belfry  of  the  building  in  Philadelphia  afterwards  called 
Independence  Hall,  in  which  the  Revolutionary  Congress  was  assembled. 
This  bell,  at  its  first  casting  in  England,  and  at  its  recasting,  after  fracture, 
in  Philadelphia,  bore  the  inscription ;  "  By  order  of  the  Assembly  of  the 
Province  of  Pennsylvania,  for  the  State  House  in  the  city  of  Piiiladelphia, 
1752.  Proclaim  liberty  throughout  the  land  to  all  the  inhabitants  thereof. 
Levit.  XXV.  10." 

The  judiciary,  hereafter,  may  be  compelled  to  be  guilty  of  a  bad  pun, 
by  citing  the  founders  of  this  bell  as  even  higher  authority  than  the  "  foun- 
ders "  of  the  Constitution. 

^  The  speaker's  idea  of  "  the  consent  of  the  governed  "  may  be  peculiar. 
During  the  first  (extra)  session  of  the  Forty-Sixth  Congress,  an  excited 
debate  arose  from  the  opposition  to  an  appropriation  bill  for  the  support  of 


4C6  THE   QUESTION   OF   A  REVOLUTION. 

Mr.  Garfield's  Speech,  Aug.  4,  1876. 

doctrine  that  no  nation  had  ever  adopted,  that  not  one  kingdom  oii 
the  earth  then  believed.  Yet  to  our  fathers  it  was  so  plain  that 
they  would  not  debate  it.  They  announced  it  as  a  truth  '  self- 
evident.'     .     .     .  ^ 

"  It  will  not  do,  Mr.  Chairman,  to  speak  of  the  gigantic  revolu- 
tion through  which  we  have  lately  passed  as  a  thing  to  be  adjusted 
and  settled  by  a  change  of  admiuistration.  It  was  cyclical,  epochal, 
century -wide,  and  to  be  studied  in  its  broad  and  grand  perspective,  — • 
a  revolution  of  even  wider  scope,  so  far  as  time  is  concerned,  than 
the  Revolution  of  1776.  "We  have  been  dealing  with  elements  and 
forces  which  have  been  at  work  on  this  contiitent  more  than  two 
hundred  and  fifty  years.  I  trust  I  shall  be  excused  if  I  take  a  few 
moments  to  trace  some  of  the  leading  phases  of  the  great  struggle. 
And  in  doing  so,  I  beg  gentlemen  to  see  that  the  subject  itself  lifts 
us  into  a  region  where  the  individual  sinks  out  of  sight  and  is  ab- 

the  army  for  the  year  ending  June  30,  1880.  Mr.  Garfield,  March  29,  1879, 
sj)eaking  of  this  action  of  the  majority  as  "  revolutionary  "  said  :  "  Our  the- 
ory of  law  is  free  consent.  That  is  the  granite  foundation  of  our  whole 
superstructure.  Nothing  in  this  republic  can  be  law  without  consent,  —  the 
free  consent  of  the  House  ;  the  free  consent  of  the  Senate  ;  the  free  consent 
of  the  executive,  or,  if  he  refuse  it,  the  free  consent  of  two  thirds  of  these 
bodies.  Will  anybody  deny  that  1  Will  any  man  challenge  a  line  of  this 
statement,  —  that  free  consent  is  tlie  foundation  rock  of  all  our  institutions  f  " 
It  may  at  least  be  questioned  whether  anybody  ever  understood  the  "  con- 
sent of  the  governed "  as  meaning  only  tliat  the  legislature  should  be 
free  to  use  its  power.  Mr.  Garfield's  application  was  that  the  majority 
would  be  using  "  its  voluntary  powers  to  destroy  the  government  "  by  re- 
fusing the  appropriation  to  carry  into  efiect  the  provisions  of  an  existing 
statute.     Cong.  Kecord,  p.  116. 

1  The  intervening  paragraph  is  as  follows  :  — 

"  Whence  came  the  immortal  truths  of  the  Declaration  1  To  me  this  was 
for  years  the  riddle  of  our  history.  I  have  searched  long  and  patiently 
through  tlie  books  of  the  doctrinaires  to  find  the  germs  from  which  the  Dec- 
laration of  Independence  sprang.  I  find  hints  in  Locke,  in  Hobbes,  in 
Rousseau,  and  Fenelon  ;  but  they  were  only  the  liints  of  dreamers  and  phi- 
losophers. The  great  doctrines  of  the  Declaration  germinated  in  the  hearts 
of  our  fathers,  and  were  developed  under  the  new  influences  of  this  wilder- 
ness world,  by  the  same  subtile  mystery  which  brings  forth  the  rose  from 
the  germ  of  the  rose-tree.  Unconsciously  to  themselves,  the  great  truths 
were  growing  under  the  new  conditions,  until,  like  the  century-plant,  they 
blossomed  into  tlie  matchless  beauty  of  the  Declaration  of  Independence, 
whose  fruitage,  increased  and  increasing,  we  enjoy  to  day." 

Compare  renuirks  on  the  same  subject,  ante,  pp.  297,  314. 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  467 

Mr.  Garfield  on  the  War  of  Ideas. 

sorbed  in  the  mighty  current  of  great  events.  It  is  not  the  occa- 
sion to  award  praise  or  pronounce  condemnation.  In  such  a  revo- 
lution men  are  like  insects,  that  fret  and  toss  in  the  storm,  but  are 
swept  onward  by  the  resistless  movements  of  elements  beyond  their 
control.  I  speak  of  this  revolution,  not  to  praise  the  men  who  aided 
it,  or  to  censure  the  men  who  resisted  it,^  but  as  a  force  to  be 
studied,  as  a  mandate  to  be  obeyed. 

In  the  year  1620  there  were  planted  upon  this  continent  two 
ideas  irreconcilably  hostile  to  each  other.  Ideas  are  the  great  war- 
riors of  the  world ;  and  a  war  that  has  no  ideas  behind  it  is  simply 
brutality.  The  two  ideas  were  landed,  one  at  Plymouth  Rock, 
from  the  Mayflower,  and  the  other  from  a  Dutch  brig  at  Jamestown, 
Virginia.  One  was  the  old  doctrine  of  Luther,  that  private  judg- 
ment, in  politics  as  well  as  religion,  is  the  right  and  duty  of  every 
man ;  and  the  other  that  capital  sliould  own  labor,  that  the 
negro  had  no  rights  of  manhood,  and  the  white  man  might  justly 
buy,  own,  and  sell  him  and  his  offspring  forever.  Thus  freedom 
and  equality  on  the  one  hand,  and,  on  the  other,  the  slavery  of  one 
race,  and  the  domination  of  the  other,  were  the  two  germs  planted 
on  this  continent." 

The  speaker  continued  with  a  brief  allusion  to  the  course 
of  the  antislavery  contest  in  the  House  and  in  the  country, 
after  which  he  remarked  :  — 

"  This  conflict  of  opinion  was  not  merely  one  of  sentimental 
feeling;  it  involved  our  whole  political  system;  it  gave  rise  to  two 
radically  different  theories  of  the  nature  of  our  Government,  the 
North  believing  and  holding  that  we  were  a  nation,  the  South  in- 
sisting that  we  were  only  a  confederation  of  sovereign  States,  and 
insisting  that  each  State  had  the  right,  at  its  own  discretion,  to 
break  the  Union,  and  constantly  threatening  secession  where  the  full 
rights  of  slavery  were  not  acknowledged."  ^ 

^  The  reader  may  compare,  on  this  point,  tlie  concluding  portions  of 
these  remarks. 

2  The  citations  made  from  this  speech  are  given  here  merely  as  exempli- 
fying a  certain  conception  of  the  political  history  of  the  country  since  1861, 
in  connection  with  the  possible  recognition  of  a  revolution.  It  is  therefore 
not  necessary  to  notice  the  character  of  any  particular  statement  as  to  ear- 
lier history,  either  for  truth  or  falsehood. 


468  THE   QUESTIOX   OF  A   REVOLUTION. 

Mr.  Garfield's  Position  as  a  Revolutionist. 

It  is  not  material  here  to  discuss  the  position  taken  by 
the  speaker  in  thus  presenting  the  question  of  allegiance 
and  of  political  duty  as  dependent  on  the  moral  question 
of  the  fitness  or  unfitness  of  negro  slaver3\^  It  is  enough 
to  remind  the  reader  that  the  purpose  of  this  essay  has 
been  to  present  the  former  question  by  itself,  and  as  one 
which  necessarily  arises  in  every  country,  whatever  dif- 
ferences in  complexion  or  race  may  exist  among  its 
inhabitants  and  whatever  may  be  its  laws  of  personal 
condition. 

In  the  argument  of  the  speaker  on  this  occasion,  how- 
ever, it  was  essential  that  he  should  thus  combine  these 
questions  in  determining  the  position  of  his  fellow-citizens 
in  his  own  and  in  other  Northern  States.  For  the  re- 
mainder of  his  speech  contains  the  proposition  that  all  who 
in  any  part  of  the  country  held  a  different  view  from  him- 
self and  friends  as  to  the  powers  of  the  general  Govern- 
ment, more  especially  in  reference  to  laws  of  personal, 
condition,  were  in  the  position  of  rebels  and  traitors  to- 
wards the  actual  administration  controlled  by  his  own 
party. 

And  this  proposition  was  presented  as  a  consequence  of 
events  since  1861,  whereby,  according  to  his  own  state- 
ment, he  with  his  political  friends  occupied  the  position  of 
successful  revolutionists,  —  a  position   enabling   them   to 

1  As  a  member  of  the  Tiiirty-Ninth  Congress,  Mr.  Garfield  declined  "  a 
general  discussion  of  the  Reconstruction  policy,"  1st  Sess.  S'Jth  Cong.  Globe, 
2462,  acquiescing,  rather  than  agreeing,  in  the  less  heroic  treatment  approved 
by  the  majority.  He  favored  a  more  stringent  disfranchisement  of  j)artici- 
pants  in  the  rebellion,  and  a  provision  for  universal  suffrage  ;  regretting 
"  that  the  House  could  not  have  found  the  public  virtue  such  that  we  might 
come  out  on  the  plain  unanswerable  proposition,  that  every  adult  intelli- 
gent citizen  of  the  United  States,  unconvicted  of  crime,  sliall  enjoy  the  right 
of  suffrage."  lb.  24G2-24G4.  In  the  debates  on  Bill  No.  114.S,  To  provide, 
&.C.,  Mr.  Garfield  advocated  purely  military  rule,  in  the  strongest  terms,  2d 
Sess.  .39th  Congress,  Globe,  1104,  1183,1820;  agreeing  with  Mr.  Stevens, 
Mr.  Shellabarger,  and  their  friends.     Compare  ante,  pp.  225,  232,  246,  258. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  469 

Mr.  Garfield's  Position  as  a  Revolutionist. 

charge  with  treason  all  wlio  opposed  their  measures  of 
government  for  being  contrary  to  the  written  Constitution 
and  the  former  conditions  of  political  existence.^ 

That  this  was  Mr.  Garfield's  position  on  this  occasion 
appears  from  his  drawing  a  parallel  between  the  control  of 
the  general  Government  by  those  who  had  "  adopted  "  and 
should  thereafter  hold  the  conquering  "ideas,"  and  the  es- 
tablishment of  a  new  dynasty  in  England  at  the  revolution 
of  1688,  and  by  his  placing  all  his  party  opponents,  whether 
personally  connected  with  the  Southern  Confederacy  or 
not,  in  the  position  of  those  who  in  that  revolution  suffered 
for  treason  in  adhering  to  the  Stuarts,  and  those  who  in 
the  American  revolution  of  1776  were  known  as  Loyalists 
or  Tories,  for  their  adhesion  to  the  crown.^ 


1  In  other  words,  Mr.  Garfield  claimed,  in  this  instance,  not  that  the 
supremacy  of  the  general  Government,  in  respect  to  all  the  States,  was 
established  by  the  war,  but  that  a  revolution  had  taken  place  giving  that 
supremacy  to  the  party  professing  certain  political  and  moral  "  ideas."  In 
his  speech  of  Jan.  28, 1864  (  see  note  below),  he  had  claimed  rights  founded 
on  revolution,  /or  the  government,  bj'  whomsoever  supported. 

^  This  was  not  the  first  time  Mr.  Garfield  had  drawn  these  parallels,  when 
attributing  to  the  administration  powers  derived  from  a  revolution.  He 
advocated  the  Confiscation  Acts,  as  justified  by  the  customs  of  international 
law,  as  between  alien  enemies,  and  at  the  same  time  as  municipal  legislation 
against  rebellious  subjects.  See  remarks  Jan.  28,  1864,  1st  Sess.  38th 
Cong.  Globe,  399-403.  In  this  he  was  like  many  others.  {Ante,  p.  170.)  But 
to  sustain  the  last  of  these  positions  he  reasoned  from  a  supposed  resem- 
blance between  the  situation  of  our  government,  and  that  of  England  in 
1688,  and  that  of  the  colonies  in  the  Revolution.  I  have  myself  {ante,  p. 
223)  indicated  a  resemblance  between  the  position  of  Parliament  in  1688,  in 
reference  to  the  succession  to  the  throne,  and  that  of  Congress  in  reference 
to  the  reconstructed  States  ;  but  not  intending  to  present  either  as  revolu- 
tionary. I  cited  Macaulay's  description  of  the  conflict  of  opinion  result- 
ing in  harmony  of  action,  as  showing  how  studious  were  all  who  combined 
in  calling  a  new  occupant  to  the  throne  to  avoid  the  position  of  revolution- 
ists. Mr.  Garfield's  comment  on  this  action  of  Parliament  is :  "  We  are 
taught  by  this,  that  whenever  a  great  people  desire  to  do  a  thing  which 
ought  to  be  done,  they  will  find  the  means  of  doing  it."  —  Globe,  403. 
The  inference  from  such  arguments  is  that  Mr.  Garfield  thought,  at  that 
time,  that  the  rebellion  could  not  be  put  down  without  usurpation  on  the 
part  of  the  government,  to  be  called  "  revolution  "  if  successful. 


470  THE   QUESTION   OF   A  BEVOLUTION. 

Mr.  Garfield's  Position  as  a  Revolutionist. 

Mr.  Garfield  proceeded  to  say  :  — 

"Thus  the  defence  and  aggrandizement  of  slavery,  and  the 
hatred  of  abolitionism,  became  not  only  the  central  idea  of  tlie 
Democratic  party,  but  its  master  passion.  .  .  .  Over  against  this 
was  arrayed  the  Republican  party,  asserting  the  broad  doctrines  of 
nationality  and  loyalty,  insisting  that  no  State  had  a  right  to  secede, 
that  secession  was  treason,  and  demanding  that  the  institution  of 
slavery  should  be  restricted  to  the  limits  of  the  States  wliere  it 
already  existed.  But  here  and  there  many  bolder  and  more  radi- 
cal thinkers  declared  with  .  .  .  that  there  never  could  be  union 
and  peace,  freedom  and  prosperity,  until  we  were  willing  to  see 
John  Hancock  under  a  black  skin." 

As  Mr.  Garfield  was  arguing  on  the  proposition  that  a 
revoUttion  of  some  sort  had  taken  place,  it  must  be  inferred 
that  he  either  regarded  these  doctrines  of  the  Eepubliean 
party  as  revolutionary,  or  supposed  that  the  adminis- 
tration under  the  nominal  leadership  of  that  party  had  fol- 
lowed the  path  of  revolution  under  the  control  of  those 
"  bolder  and  more  radical  thinkers." 

In  view  of  such  an  alternative  the  importance  of  resort- 
ing to  the  "  war  of  ideas  "  is  easily  seen.  It  serves  to 
exculpate  everybody  from  responsibility  for  revolutionary 
action,  and  at  the  same  time  confirms  the  criminality  of 
those  who  opposed  the  persons  actually  engaged  in  effect- 
ing the  change.  Another  method  of  escaping  the  incon- 
veniences of  the  revolutionary  position,  which  is  equally 
reasonable  and  which  to  many  people  seems  more  devout, 
has  been  to  refer  to  the  will  of  God  the  responsibility  for 
following  their  own  judgments,  —  a  method  often  illus- 
trated l)y  Mr.  Lincoln's  expressions,  though  framed  in  the 
shape  of  a  disclaimer  of  personal  merit. ^ 

1  In  a  letter  to  Colonel  Hodges  of  Kentucky,  dated  April  4,  18G1,  after 
describing  his  position  taken  in  an  interview  with  Governor  Branilette  and 
Senator  Dixon,  Mr.  Lincoln  wrote,  "  In  telling  this  tale,  I  attempt  no  com- 
pliments to  my  own  sagacity.  I  claim  not  to  have  controlled  events,  but 
confess  that  events  have  controlled  mc.    Now,  at  the  end  of  three  years' 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  471 

Mr.  Garfield's  Position  as  a  Revolutionist. 

Afterwards,  in  the  closing  portions  of  his  remarks,  Mr. 
Garfield  said  :  — 

"  Mr.  Chairman,  ought  the  Republican  party  to  surrender  its 
truncheon  of  command  to  the  democracy  ?  The  gentleman  from 
Mississippi  says,  if  this  were  England,  the  ministry  would  go  out  in 
twenty-four  hours  with  such  a  state  of  things  as  we  have  here. 
Ah,  yes  !  that  is  an  ordinary  case  of  change  of  administration.  But 
if  this  were  England,  what  would  she  have  done  at  the  end  of  the 
war?  England  made  one  such  mistake  as  the  gentleman  asks  this 
country  to  make  when  she  threw  away  the  achievements  of  the 
grandest  man  that  ever  trod  her  liighway  of  power.  Oliver  Crom- 
well had  overturned  the  thi-one  of  despotic  power,  and  had  lifted 
his  country  to  a  place  of  masterful  greatness  among  the  nations  of 
the  earth ;  and  when,  after  his  death,  his  great  sceptre  was  trans- 
ferred to  a  weak  though  not  unlineal  hand,  his  country,  in  a  moment 
of  reactionary  blindness,  brought  back  the  Stuarts.  England  did 
not  recover  from  that  folly  until  in  1689  the  Prince  of  Orange  drove 
from  her  island  the  last  of  that  weak  and  wicked  line.  Did  she 
afterward  repeat  the  blunder  ? 

"  For  more  than  fifty  years  pretenders  were  seeking  the  throne, 
and  the  wars  .  .  .  till  the  cause  of  the  Stuarts  was  dead. 
They  did  not  change  as  soon  as  the  battle  was  over,  and  let  the 
Stuarts  come  back  to  power. 

"  And  how  was  it  in  our  own  country,  when  our  fathers  had  tri- 
umphed in  the  war  of  the  Revolution  ?  When  the  victory  was  won, 
did  they  open  their  arms  to  the  loyalists,  as  they  called  themselves, 
or  tories,  as  our  fathers  called  them  ?  Did  they  invite  them  back  ? 
Not  one.  They  confiscated  their  lands.  The  States  passed  decrees 
that  no  tory  should  live  on  our  soil.  And  when  they  were  too 
poor  to  take  themselves  away,  our  fathers,  burdened  as  the  young 

struggle,  the  nation's  condition  is  not  what  either  party  or  any  man  desired 
or  expected.  God  alone  can  claim  it.  Whither  it  is  tending  seems  plain. 
If  God  now  wills  tlie  removal  of  a  great  wrong,  and  wills  also  that  we  of  the 
North,  as  well  as  you  of  the  South,  shall  pay  fairly  for  our  complicity  in  that 
wrong,  impartial  history  will  find  therein  new  causes  to  attest  and  revere  the 
justice  and  goodness  of  God." 

In  presenting  "  Nationality  and  Emancipation  "  as  ideas  acting  in  war 
like  actual  persons,  Dr.  Draper  quotes  in  support  of  his  theorj'  this  declara- 
tion of  Mr.  Lincoln  as  "  embodying  a  profound  philosophical  truth,  the  result 
of  his  meditations  on  the  war."  —  The  Civil  War,  etc.  iii.  642. 


472  THE   QUESTION   OF    A    REVOLUTION. 

Mr.  Garfield's  Position  as  a  Revolutionist. 

nation  was  with  debt,  raised  the  money  to  transport  the  Tories  be- 
yond seas  or  across  the  Canada  border.   .  .  . 

"  Now,  I  do  not  refer  to  this  as  an  example  which  we  ought  to 
follow.     O,  no.     We  live  in  a  milder  era."  .  .  . 

After  quoting  a  remark  of  John  Adams,  taken  from  a 
centennial  address  by  Dr.  Storrs :  — 

"  Now,  Mr.  Chairman,  after  all  the  fearful  corruption  of  his  time 
described  by  John  Adams,  our  fathers  never  thought  it  necessary  to 
call  the  tories  back  to  take  charge  of  their  newly-gained  liberties. 

"  I  will  close  by  calling  your  attention  again  to  the  great  problem 
before  us.  Over  this  vast  horizon  of  interests,  North  and  South, 
above  all  party  prejudices  and  personal  wrong-doing,  above  our 
battle  hosts  and  our  victorious  cause,  above  all  that  we  hoped  for 
and  won,  or  you  hoped  for  and  lost,  is  the  grand  onward  movement 
of  the  republic.  .  .  . 

"And  until  these  great  results  are  accomplished,  it  is  not  safe  to 
take  one  step  backward.^  It  is  still  more  unsafe  to  trust  interests  of 
such  measureless  value  in  the  hands  of  an  organization  whose  mem- 
bers have  never  comprehended  their  epoch,  have  never  been  in 
sympathy  with  its  great  movements,  who  have  resisted  every  step  of 
it  progress,  and  whose  principal  function  has  been 

'  To  lie  in  cold  obstruction 
Across  the  pathway  of  tlie  nation.' 

"  It  is  most  unsafe  of  all  to  trust  that  organization  when,  for  the 
first  time  since  the  war,  it  puts  forward  for  the  first  and  second  place 
of  honor  and  command  men  who,  in  our  days  of  greatest  danger, 
esteemed  party  above  country,  and  felt  not  one  throb  of  patriotic 
ardor  for  the  triumph  of  the  imperilled  Union,  but  from  the  begin- 
ning to  the  end  hated  the  war  and  hated  those  who  carried  our  eagles 
to  victory.^ 

1  Record,  5186.  Would  it  be  wron>jing  the  speaker  to  suppose  that  he 
meant  to  imply  that,  even  though  the  opposite  party  should  prove  to  have  a 
majority  of  tlie  votes  in  the  then  ensuing  elections,  it  would  be  the  right  or 
duty  of  the  party  representing  his  own  ideas  to  retain  the  control  of  the  ad- 
ministration by  fraud  or  by  force  1 

2  It  may  be  only  fair  to  Mr.  Garfield  to  remind  those  who  are  not  fami- 
liar with  the  ordinary  course  of  debate  in  Congress  that  these  remarks  were 


THEOEY   OF   OUR   NATIONAL   EXISTENCE.  473 

Theory  of  a  revolutionary  Change. 

"  No,  no,  gentlemen  ;  our  enlightened  and  patriotic  jDeople  will  not 
follow  such  leaders  in  their  rearward  march.  Their  myriad  faces 
are  turned  the  other  way,  and  along  their  serried  lines  still  rings  the 
cheering  cry,  '  Forward  ! '  till  our  great  work  is  fully  and  worthily 
done."     S^Loud  and  continued  applause.^ 

That  all  of  this  school,  at  the  present  day,  whether 
speaking  as  judges,  jurists,  statesmen,  historians,  or  politi- 
cal philosophers,  may  justly  be  charged  with  resting  their 
position,  whether  they  acknowledge  it  or  not,  on  a  revo- 
lutionary change  since  1861,  is  apparent  from  the  fact 
that  none  have  explained  how  a  State's  capacity  to  secede, 
or  to  carry  on  a  war  for  that  end,  is  less  cognizable  than 
before. 

So  far  as  they  have  attempted  this,  it  is  by  the  assertion 
that  the  States  in  union  are  no  longer  sovereign  in  any 
degree;  that  is,  that  no  State  now  holds  even  the  "re- 
served "  powers  independently,  but  only  as  subordinate 
to  a  "National"  (general)  Government,  which,  as  the 
highest  visible  representative  of  sovereignty,  applies  the 
Constitution  as  law  acting  upon  people  and  States  as  its 
subjects.^ 

But  nothing  approaching  to  a  histoTical  demonstration 
of  this  has  been  attempted  by  anybody.  Everything  that 
has  been  proffered  for  such   a  demonstration  is,  really, 

made  in  the  committee  of  the  whole  on  the  state  of  the  Union,  in  which 
case  no  particular  motion  is  under  discussion,  and  the  members  liave  a  prac- 
tically unlimited  field  for  debate.  This  speech  was  also  delivered  when 
a  presidential  election  was  in  prospect,  at  which  period  speakers  make 
the  most  of  their  opportunity  to  promote  party  triumphs.  The  remarks  of 
Mr.  Garfield  might  pass,  with  those  of  many  others  at  that  time,  for  ordi- 
nary electioneering  rhetoric,  and  would  not  have  been  noticed  here  but  for 
his  present  prominence.  An  argument  very  similar  to  that  made  in  this 
speech  appears  as  the  basis  of  an  article  by  Senator  G.  F.  Edmvmds,  in  the 
North  Amerijan  Review,  January,  1881,  "Controlling  Forces  in  American 
Politics,"  from  which  it  might  be  gathered  that  the  war  had  settled  questions 
of  revenue  and  economical  policy  in  accordance  with  the  "  ideas  "  of  a  cer- 
tain party  controlling  the  Administration. 
1  Ante,  pp.  341-347. 


474  THE   QUESTION    OF   A   REVOLUTION. 

Nation  and  Empire  as  antagonistic  Terms. 

nothing  beyond  the  older  assertion  of  the  superiority  of 
the  nation  as  a  mass  of  individuals  over  the  politically 
organized  States,  —  a  superiority  resulting,  practically,  in 
the  supremacy  of  the  general  Government. 

How  this  superiority  of  the  nation  is  to  be  otherwise 
manifested  is  not  told,  unless  by  the  use  of  certain  adjec- 
tives, such  as  "imperial  "  as  applied  to  the  nation  or  the 
people  as  a  mass.  But  by  whom,  or  in  what  way,  imperi- 
alism is  to  exhibit  itself  is  left  to  the  imagination. 

That  the  imagination  of  some  writers  has  been  strongly 
excited  by  the  magnitude  and  somewhat  sanguinary  com- 
plexion of  the  hitherto  novel  experiences  of  this  country 
during  the  war,  may  be  inferred  from  the  manner  in  which 
they  have  agreed  in  alluding  to  Rome,  as  an  exemplar 
which  this  nation  or  people  of  the  so-called  United  States 
is  to  resemble,  to  rival,  and  to  surpass.^ 

As  I  have  understood  the  modern  use  of  the  words  in 
political  science,  "  empire  "  and  "nation"  represent  two 
essentially  antagonistic  forms  of  political  existence.  And, 
as  I  have  read  history,  nothing  could  be  more  unlike  than 
the  conception  of  the  Roman  state,  either  as  republic  or  as 
empire,  and  any  situation  hitherto  occupied  by  the  politi- 
cal personality  known  as  the  United  States. 

The  idea  conveyed  by  the  word  "  nation  "  is  altogether 

1  Mr.  Tomeroy,  Const.  Law,  §  57:  — "The  people  of  the  United  States,— 
that  new-born  Nation  destined  .  .  .  until,  being  made  perfect  by  suffering, 
it  shall  wield  an  influence  over  humanity  even  surpassing  that  exerted  by 
the  deathless  empire  of  Kome."  See  also  in  Mr.  Jameson's  Const.  Conven- 
tion, §  33,  an  elaborate  attempt  to  find  a  parallel  in  the  history  of  Rome 
witli  the  prospects  of  the  United  States.  Dr.  Draper,  Civil  War,  etc.  iii.  675 : 
—  "The  mind  of  the  nation  recognizes  that  it  is  the  destined  successor  of 
Kome,"  and  in  Thoughts  on  the  Future  Civil  Polity  of  America,  p.  80 :  —  "  No 
European  nation  can  serve  us  as  an  example,  for  none  has  encountered  a 
problem  so  complicated  and  so  vast.  The  nearest  approach  to  its  solution 
was  made  by  the  lloman  Empire."  And  ih.  introd.  9.  "An  imperial  power 
has  come  into  existence  before  our  eyes.  .  .  .  There  is  before  it  a  career  of 
unparalleled  grandeur,  a  splendid  history,  to  be  wrought  out  on  a  greater 
scale  than  that  of  Kome." 


THEORY   OF   OUR    NATIONAL  EXISTENCE.  475 

Nation  and  Empire — how  understood. 

a  modern  one,  developed  since  the  decline  of  the  feudal 
system  in  Europe.  The  Romans  knew  nothing  of  "  na- 
tions "  in  this  sense  of  the  word.  The  Roman  people, 
populus  Bomaniis,  that  is,  those  who  held  the  privileges  of 
the  city  of  Rome,  never  called  themselves  a  nation,  in  any 
sense.  The  same  may  be  said  of  all  those  with  whom 
they  engaged  in  war  or  recognized  as  "  friends  of  the 
Roman  people."  They  were  more  or  less  definite  collec- 
tions of  various  tribes,  communities,  or  gentes,  in  the  ori- 
ginal sense  of  the  word  geiis,  whose  corporate  existence 
generally  depended  on  the  continuance  of  some  city  (civi- 
fas),  in  accordance  with  the  ideas  of  all  the  Mediterranean 
States  of  antiquity  ;  as  was  the  case  with  those  known  to 
the  Romans  as  the  Carthaginians  (^Cartagbiienses)} 

The  title  "  emperor  "  has,  since  the  days  of  the  first 
Napoleon,  been  sometimes  used  to  designate  the  occupant 
of  a  position  in  the  state  not  essentially  different  from  that 
more  commonly  understood  as  the  position  of  a  king. 
But  "•  empire  "  involves  the  idea  of  a  political  personality 
holding  sovereignty,  by  right  above  law,  which  is  exercised 
not  merely  over  the  people  of  a  nation,  but  over  other 
political  personalities  holding  political  power  in  a  subject 
relation  to  such  empire.  Nationalism  and  Imperialism  are 
therefore  in  opposition,  as  j^olitical  principles.^ 

It  would  be  interesting,  at  least,  to  know  whether  the 
writers  referred  to  propose  that  the  empire  which  the}'- 
anticipate  shall  be  exhibited  in  the  subjection  of  the 
States,  as  political  personalities,  to  the  individuals  elected 

1  For  an  essay  of  this  sort  there  can  be  no  better  authority  on  this  tlian 
that  of  Dr.  Lieber,  who  was  a  leading  advocate  for  the  theory  of  nationalism 
as  an  idea  controlling  all  modern  political  life.  See  fragments  on  "  Na- 
tionahsm,"  etc.,  in  Vol.  II.  of  his  Miscellanies,  pp.  222-242 ;  and  compare 
E.  Mulford's  The  Nation,  Ch.  XVIII. 

2  "  As  despotic  raonarchs  claiming  the  world  for  their  realm,  the  Teutonic 
emperors  strove  from  the  first  against  three  principles,  over  all  of  which 
their  forerunners  of  the  elder  Rome  had  triumphed,  —  those  of  Nationality, 
Aristocracy,  and  Popular  Freedom."  —  Bryce's  Holy  Roman  Empire,  391. 


476  THE   QUESTION   OF   A   REVOLUTION. 

Question  of  the  Place  of  Supreme  Power. 

by  the  votes  of  their  citizens,  under  existing  forms  of  law 
to  constitute  the  government  at  Washington.     If  any  of 
them  take  the  position  of  instructors  in  public  law  to  the 
generation   advancing  to  act  in   political  life,  thej^  may 
justly  be  expected  to  declare  themselves  more  explicitly. 

If,  however,  they  look  to  the  coming  empire  as  some- 
thing to  be  exhibited  in  the  political  dominion  of  the 
United  States  over  adjacent  po^^ulations  and  countries 
now  distinct  and  independent,  it  is  a  matter  of  pro^^hetic 
vision  which  is  not  included  in  the  scope  of  this  essay. ^ 

It  is,  however,  true  that  empire,  imperium^  in  the  early 
sense  of  the  Latin  word,  exists  in  every  country  of  neces- 
sit}',  and  its  possessors  must  be  known  in  each  country 
wherein  civil  government  is  preferred  to  anarchy.  It  is 
not  enough  that  the  forma  regiminis  should  be  generally 
understood.  To  avoid  civil  dissensions,  and  fratricidal 
wars,  it  is  even  more  essential  that  the  forma  imjjerii 
should  be  clearly  recognized.^ 

As  illustrating  our  own  need  of  making  this  an  object 
of  general  knowledge,  I  cite  from  remarks  made  by  Mr. 
Garfield  in  the  House,  on  an  occasion  not  long  before  his 
nomination  as  candidate  for  the  presidency.  These  will 
at  the  same  time  illustrate  the  practical  political  impor- 
tance of  many  of  the  other  distinctions  which  have  herein 
been  pointed  out. 

On  the  27th  June,  1879,  during  the  extra  session  of  the 
Forty-sixth  Congress,  the  House,  being  in  committee, 
was  considering  the  bill  making  appropriation  to  pay  the 
fees  of  United  States  marshals  and  their  general  depu- 

1  K.  Ilillebrand,  Lectures  on  German  Thouglit,  p.  288  :  —  "  Tlie  new  Ger- 
man patriotism,  wliicli  is  not  to  be  confounded  with  tiie  old  Prussian,  was 
not,  and  is  not  naif.  It  is  conscious;  it  is  intentional;  it  has  a  tincture  of 
pedantry  because  it  has  been  made  by  scholars  and  literary  men."  A  paral- 
lel may  suggest  itself  to  the  American  reader. 

2  Ante,  pp.  293,  302. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  477 

Mr.  Garfield's  Remarks,  June  27,  1879. 

ties.^      In   the   course    of  the    debate,    Mr.    Garfiekl   re- 
marked :  2  — 

"  The  majority  in  this  Congress  ^  have  adopted  what  I  consider 
very  extreme  and  daugerous  opinions  on  certain  important  con- 
stitutional questions.  They  have  not  only  drifted  back  to  their 
old  attitude  on  the  subject  of  State  sovereignty,  but  they  have 
pushed  that  doctrine  much  further  than  most  of  their  predecessors 
ever  went  before,  except  during  the  period  immediately  preceding 
the  war." 

Mr.  Garfield  proceeded  to  cite,  from  the  official  reports 
of  the  debates,  certain  "  declarations  of  seven  distin- 
guished members  [senators]  of  the  present  Congress,"  of 
which  he  said  :  — 

"  They  set  forth  what  may  be  regarded  as  the  doctrines  of  the 
Democracy  as  represented  in  this  Capitol." 

These  doctrines  Mr.  Garfield  afterwards  summarized  as 
follows :  — 

"  They  are  in  brief:  first,  there  ai'e  no  national  elections ; 
second,  the  United  States  has  no  voters  ;  third,  the  States  have  the 
exclusive  right  to  control  all  elections  of  members  of  Congress  ; 
fourth,  the  Senators  and  Representatives  in  Congress  are  State 
officers,  or,  as  they  have  been  called  during  the  present  session, 
'  embassadors '  or  '  agents  '  of  the  States  ;  fifth,  the  United  States 
has  no  authority  to  keep  the  peace  anywhere  within  a  State,  and, 
in  fact,  has  no  peace  to  keep ;  sixth,  the  United  States  is  not  a 
nation  endowed  with  sovereign  power,  but  is  a  confederacy  of 
States  ;  seventh,  the  States  are  sovereignties  possessing  inherent 
supreme  powers.  They  are  older  than  the  Union,  and,  as  inde- 
pendent sovereignties,  the  State  governments  created  the  Union, 
and  determined  and  limited  the  powers  of  the  general  Govern- 
ment." 

1  H.  R.  No.  2382.  Tlie  matter  in  controversy  being  the  constitutionality 
of  the  provisions  of  the  statutes  relating  to  elections  for  Representatives, 
which  have  been  mentioned,  ante,  p.  386. 

2  Congressional  Record,  46th  Congress,  p.  2388. 

8  The  majority  at  that  time,  both  in  the  House  and  Senate,  being  with 
the  opposite  party. 


478  THE   QUESTION   OF   A  REVOLUTIOlSr. 

Mr.  Garfield's  Remarks,  June  27,  1879. 

The  speaker  proceeded  to  indicate  certain  political 
measures  of  government  which  his  opponents  had  advo- 
cated, and  which  he  regarded  as  illustrating  the  practical 
bearing  of  these  doctrines. 

Mr.  Garfield  afterwards  stated  "  briefly  the  counter- 
propositions."  To  the  reader  of  the  preceding  pages 
there  will  be  nothing  novel  in  these,  and  the}'  are  cited 
here  mainly  with  reference  to  remarks  of  the  same  speaker 
on  another  occasion,  to  show  his  combination  of  the  his- 
torical with  the  revolutionary  basis.  His  propositions 
were :  — 

"  I  affirm,  first,  that  the  Constitution  of  the  United  States  was 
not  created  by  the  governments  of  the  States,  but  was  ordained  and 
established  by  the  only  sovereign  in  this  country,  the  common 
superior  both  of  the  States  and  the  nation,  —  the  people  them- 
selves ;  second,  that  the  United  States  is  a  nation,  having  a  govern- 
ment whose  powers,  as  defined  and  limited  by  the  Constitution, 
operate  upon  all  the  States  in  their  corporate  capacity,  and  upon 
*11  the  people  ;  third,  that  by  its  legislative,  executive,  and  judicial 
authority  the  nation  is  armed  with  adequate  power  to  enforce  all 
the  provisions  of  the  Constitutiou  against  all  opposition  of  indi- 
viduals or  of  States,  at  all  times,  and  all  places  within  the  Union." 

For  the  purpose  of  this  essay  it  is  immaterial  whether 
the  summary  given  by  the  speaker  of  the  positions  taken 
by  his  political  opponents  was  just  or  unjust.  Intrinsi- 
cally, as  logical  statements  of  doctrine,  or  historical  de- 
scriptions of  fact,  that  summary,  and  that  afterwards  given 
as  "  counter-propositions,"  are  beneath  criticism,  from 
their  vague,  inconsistent,  and  misleading  use  of  words. 
Like  many  other  attempts  in  the  same  direction,  they  are 
not,  either  of  them,  more  false  than  true,  or  more  true 
than  false. 

The  speaker  then  followed  with  a  brief  historical  state- 
ment, to  use  his  own  words,  of  "  the  constitutional  his- 
tory of  this  country,  or  rather  the  history  of  sovereignty 
and  government  in  this  country,"  which  he  distinguished 
as  "  comprised  in  four  sharply  defined  epochs." 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  479 

Mr.  Garfield's  Remarks,  June  27,  1879. 

Of  the  periods  so  discriminated,  the  second  is  the  most 
material,  because  determining  all  those  following.  In 
describing  this  period,  the  theory  of  sovereignty  in  the 
nation  as  a  mass,  and  the  history  of  the  inception  of  that 
sovereignty,  is  asserted  in  these  words  :  — 

"  Second,  on  the  4th  clay  of  July,  1776,  the  people  of  those  col- 
onies, asserting  their  natural  right  as  sovereigns,  withclrew  the 
sovereignty  from  the  Crown  of  Great  Britain,  and  reserved  it  to 
tliemselves.  In  so  far  as  they  delegated  this  national  authority  at 
all,  they  delegated  it  to  the  Continental  Congress  assembled  at 
Philadelphia.  That  Congress,  by  general  consent,  became  the 
supreme  government  of  this  country,  —  executive,  judicial,  and 
legislative  in  one.  During  the  whole  of  its  existence  it  wielded 
the  supreme  power  of  the  new  nation." 

In  consequence  of  a  similar  exertion  of  sovereignty  the 
people,  so  the  speaker  stated,  established  the  government 
of  the  Confederation,  and  afterwards  ordained  and  estab- 
lished the  Constitution.! 

Mr.  Garfield,  in  order  to  sustain  his  position,  commenced 
by  taking  the  proper  and  only  legitimate  method  to  sus- 
tain his  position,  appealing,  not  to  authorities^  as  a  lawyer, 
but  to  facts,  as  an  historian.  This  is  in  accordance  with 
the  method  pursued  in  this  treatise,  and  the  only  question 
is,  here,  whether  the  facts  actually  were  as  Mr.  Garfield 
has  represented  them.     He  said  :  — 

"  That  no  one  may  charge  that  I  pervert  history  to  sustain  my 
own  theories,  I  call  attention  to  the  fact  that  not  one  of  the  colo- 

1  As  remarked  hereinbefore  (p.  323,  note),  with  regard  to  language  of  Mr. 
Jameson,  anybody  who  is  endowed  with  the  courage  to  present  such  a  state- 
ment as  history  is  impregnable.  And  yet  Mr.  Garfield,  on  this  same  occa- 
sion, referring  to  decisions  of  the  Supreme  Court,  could  say  (Record,  p.  2390), 
"  Chief  Justice  Marshall,  that  great  judge,  who  found  the  Constitution 
paper,  and  made  it  a  power,  who  found  it  a  skeleton,  and  clothed  it  with 
flesh  and  blood.  By  his  wisdom  and  genius  he  made  it  the  potent  and  bene- 
ficent instrument  for  the  government  of  a  great  nation."  Here  is  not  only  a 
recognition  of  the  fetish,  but  also  evidence  that  the  manufacturers,  like 
makers  of  idols  of  brass,  wood,  and  stone,  set  their  private  mark  on  their 
handiwork. 


480  THE    QUESTION   OF   A   EEVOLUTION. 

Mr.  Garfield's  Method  of  proving  a  Fact. 

nies  declared  itself  free  and  independent.  Neither  Virginia  nor 
Massachusetts  threw  ofiF  its  allegiance  to  the  British  crown  as  a 
colony.  Tliis  great  declaration  was  made  not  even  by  all  the  col- 
onies as  colonies,  but  it  was  made  in  the  name  and  by  the  authority 
of '  all  -^  the  good  people  of  the  colonies '  as  one  people." 

These  sentences  present  arjother  illustration  of  that  ten- 
dency, in  all  controversy  on  this  subject,  to  state  doctrine 
as  if  it  were  history,  which  has  herein  abeady  been 
noticed.^  Mr.  Garfield's  statement  is,  apparently,  that 
the  colonies,  as  so  many  distinct  political  corporeities,  were 
not  the  actors  in  effecting  what  we  call  the  independence 
of  the  United  States.  His  idea  must  be  that  the  series 
of  public  acts  which  are  recorded  in  every  history  of  the 
United  States  as  the  acts  of  the  pre-existing  political 
organizations  known  as  colonies,  and  afterwards  as  States, 
were  not  their  acts  at  all  ;  but,  in  spite  of  appearances  and 
the  record,  were  performed  by  a  totally  different  set  of 
actors. 

As  no  proof  of  this  is  offered,  the  statement  is  merely 
that  such  is  his  doctrine  ;  or  that  his  doctrine  requires 
such  a  view  of  history.  Instead  of  showing  a  fact,  he 
appeals  to  what,  at  the  best,  is  only  the  record  of  a  fact, 
and  which  is  to  be  compared  with  other  records.  Like  all 
of  this  school,  he  relies  on  the  words  of  the  Declaration, 
which,  even  if  they  could  bear  such  an  interpretation,  are 
not  of  the  slightest  value  as  {igainst  the  fact  as  it  stands, 
—  the  fact  that,  except  as  the  political  people  of  each 
colony  acted  in  their  corporate  capacity,  there  was  no 
"  good  people  of  the  colonies  "  to  act  at  all.^ 

Mr.  Garfield  proceeded  to  fortify  liis  position  by  citing 

1  The  word  "  all "  is  introduced  in  the  report  of  the  debate  by  inad- 
vertence, it  must  be  supposed  either  of  the  speaker  or  the  reporter,  as  it  is 
not  so  in  the  Declaration. 

2  Ante,  p.  99. 

8  Coiirpare  the  argument  on  the  words  in  the  Preamble  to  the  Constitu- 
tion {ante,  pp.  108-113) ;  also  Ch.  IV.,  and  pp.  337,  338. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  481 

Mr.  Garfield's  Appeal  to  other  Opinions. 

four  leading  "  names "  as  sustaining  his  own  view  of 
history.  As  to  some  of  these  he  was,  I  think,  misled,  as 
so  many  others  have  been,  by  his  own  preconceptions  of 
the  events,  and  still  more  by  the  double  meaning  of  the 
phrases  by  which  the}'"  have  been  described. 

The  first  of  these  "  names  "  or  authorities,  if  they  may 
be  called  such  on  a  question  of  evidence,  is  an  opinion 
which,  as  I  read  it,  does  not  sustain  that  view  of  the  facts. 
It  is  an  opinion,  indeed,  which  I  claim  as  one  agreeing  with 
the  view  maintained  in  this  essay,  —  that  the  States ^heiwg 
united,  as  matter  of  political  fact,  at  the  moment  of  their 
declaration  of  their  independence,  were,  as  united  politi- 
cal personalities,  —  "  the  union,"  the  sovereign,  —  the 
United  States. 

Mr.  Garfield  said,  — 

"  Let  me  fortify  this  position  by  a  great  name,  that  will  shine  for- 
ever in  the  constellation  of  our  southern  sky,  —  the  name  of  Charles 
Cotesworth  Pinckney  of  South  Carolina.  He  was  a  leading  mem- 
ber of  the  Constitutional  Convention  of  1787,  and  also  a  member  of 
the  Convention  of  South  Carolina  which  ratified  the  Constitution. 
In  that  latter  convention  the  doctrine  of  State  sovereignty  found  a 
few  champions,  and  their  attempt  to  prevent  the  adoption  of  the 
Constitution,  because  it  established  a  supreme  national  govern- 
ment,^ was  rebuked  by  him  in  these  memorable  words." 

Pinckney's  argument  was  founded  on  the  language  of 
the  Declaration  of  Independence.  The  quotation  given 
by  Mr.  Garfield  is  from  the  report  in  Eliott's  Debates,  as 
follows  :  — 

1  Tlie  speaker's  method  of  demonstration  agrees  with  that  of  Story  and 
the  whole  school.  On  a  question  of  fact,  the  opinion  of  one  member  of  a 
State  convention,  supposed  to  support  the  speaker's  view,  is  selected  as  forti- 
fying his  position,  and  that  of  other  members  dismissed,  because  it  does  not. 
Mr.  Garfield  here  also  assumes  that  those  who  voted  to  adopt  the  Consti- 
tution understood  it  as  he  does,  and  as  incompatible  with  the  idea  of  federa- 
tion between  sovereign  States,  —  which  is  another  practical  begging  the 
question,  as  well  as  an  inference  well-known  to  be  contradicted  by  the  his- 
tory of  each  State  which  adopted  the  Constitution. 


4S2  THE   QUESTION   OF   A   KEYOLUTION. 

Mr.  Garfield's  Citation  of  Piackney. 

"  This  admirable  mauifesto,  which  for  importance  of  matter 
and  elegance  of  composition  stands  unrivalled,  sufficiently  confutes 
the  honorable  gentleman's  doctrine  of  the  indin'iiiial  sovereignty  of 
the  several  States.  In  that  declaration  the  several  States  are  not 
even  enumerated,  but  after  reciting  in  nervous  language  our 
right  to  independence  and  the  tyranny  which  compelled  us  to  assert 
it,  the  declaration  is  made  in  these  words,  —  *  We,  therefore,  the 
representatives  of  the  United  States  of  America,  in  General  Con- 
gress assembled,  appealing  to  the  Supreme  Judge  of  the  world  for 
the  rectitude  of  our  intentions,  do,  in  the  name  and  by  the  authority 
of  the  good  people  of  these  colonies,  solemnly  publish  and  declare 
that  these  United  Colonies  are,  and  of  right  ought  to  be.  Free  and 
Independent  States.'  The  separate  independence  and  indii'idual  * 
sovereignty  of  the  several  States  were  never  thought  of  by  the  en- 
lightened band  of  patriots  who  framed  this  declaration.  The  several 
States  are  not  even  mentioned  by  name  in  any  part  of  it,  as  if  it  was 
intended  to  impress  this  maxim  on  America.  —  that  our  freedom  and 
independence  arose  from  our  union,  and  that  without  it  we  could 
neither  be  free  nor  independent.  Let  us.  then,  consider  all  attempts 
to  weaken  this  union,  by  maintaining  that  each  is  separately  and 
indicidually  independent,  as  a  species  of  political  heresy,  which 
can  never  benefit  us,  but  may  bring  on  us  the  most  serious  dis- 
tresses." 

Pinckney's  interpretation  of  the  language  of  the  Decla- 
ration accords'  with  the  facts  as  they  appear  in  history. 
"  Our  union,"  "  this  union  "  is  here  obviously  equivalent 
to  our  States,  being  united.  In  the  school  of  Story,  or  of 
his  modern  disciples,  "  union  "  is  not  the  States  united,  nor 

'  Mr.  G.  T.  Curtis,  History  of  the  Constitution  (I.  p.  4-55),  sjiys,  "  Pincknej 
entered  the  convention  with  a  desire  to  adhere,  if  possible,  to  the  charac- 
teristic principles  of  the  Confederation."  Mr.  Curtis  must  suppose  Pinck- 
ney  to  have  at  least  recognized  the  States  as  personalities  then  holding  the 
pilitical  power,  even  if  he  afterwards  acquiesced  in  a  consolidation  under  a 
constitution.  The  italics  in  the  above  citation  of  Pinckney's  language  are 
mine.  As  it  stands  in  4  Elliot's  Debates,  p.  301,  the  words  FREE  AND 
[NDEPENDENT  STATES  are  printed  in  capitals,  and  so  stand  as  en- 
grossed in  the  original  Declaration,  signed  Aug.  2,  1776  (Am.  Archives  V. 
p.  15!)8),  —  a  circumstance  which  may  bg  important  to  a  school  whose  main 
argument  is  in  writinu  "  National"  with  a  big  N. 


THEORY   OF    OUPw   NATIONAL   EXISTENCE.  483 

Other  Names  cited  by  Mr.  Garfield. 

the  United  States,  but  only  a  name  for  something  repre- 
sented solely  by  a  National  government.  Their  interpre- 
tation of  the  words  "  in  the  name  of  the  good  people  of 
these  colonies  "  does  not  accord  with  the  facts.  As  has 
lierein  been  said  with  reference  to  a  similar  argument  from 
the  langnage  of  the  Constitution,  as  this  is  a  qnestion  of 
history,  the  words  of  the  Declaration  are  not  of  the  sliglit- 
est  value  as  compared  with  the  undisputed  facts.^ 
Mr.  Garfield  proceeded  to  say,  — 

''  For  a  further  and  equally  powerful  vindication  of  the  same 
view,  I  refer  to  the  Commentaries  of  Judge  Story,  Vol.  I.  p.  197. 

"  In  this  same  connection,  and  as  a  pertinent  and  effective  re- 
sponse to  the  Democratic  doctrines  quoted  in  the  outset,  I  quote 
from  the  first  annual  message  of  Abraham  Lincoln,  than  whom  no 
man  of  our  generation  studied  the  origin  of  the  Union  more  pro- 
foundly.    He  said  '  Our  States,'  "  etc. 

As  I  have  already  herein  remarked,  more  than  once,  I 
do  not  pretend  to  know  what  Judge  Story  understood  by 
"  the  Union  "  and  by  "  the  people  of  the  United  States  "  ;  '^ 
and,  whatever  he  may  have  understood  by  those  terms,  his 
opinion  on  a  question  of  history  is  no  more  testimony  as  to 
the  facts  than  is  the  opinion  of  anybody  else. 

Mr.  Lincoln's  language  I  have  already  cited,^  as  indi- 
cating that  he  perhaps  accepted  that  view  of  the  facts  which 
I  have  sustained  as  the  true  one. 

Mr.  Garfield  ended  his  climax  of  "  names "  as  fol- 
lows :  — 

"In  further  enforcement  of  the  doctrine  that  the  State  govern- 
ments were    not  the  sovereigns  who  created  this  Government,^   I 

1  Ante,  p.  130.  "-  Ante,  p.  100.  3  Ante,  p.  142. 

*  If  it  did  not  escape  observation,  by  having  become  one  of  it8  common- 
places, it  might  be  called  one  of  the  sophistries  of  this  school,  that  they 
charge  their  opponents  with  attributing  sovereignty  to  the  State  (/ovemments ; 
that  is, — to  the  persons  elected  by  the  voters  in  each  State,  for  fixed  periods  of 
time,  to  administer  the  executive,  legislative,  and  judicial  powers,  as  if  they 
had  no  other  idea  of  the  State  which  they  speak  of  as  one  of  a  confederation. 


484  THE   QUESTION   OF   A   REVOLUTION. 

James  Wilson  cited  by  Mr.  Garfield. 

refer  to  the  gi'eat  decision  of  the  Supreme  Court  of  the  Uuited  States 
in  the  case  of  Chisholm  v.  The  State  of  Georgia,  reported  in  2  Dal- 
las, —  a  decision  ix^plete  with  the  most  enlightened  national  spirit, 
in  which  the  court  stamps  with  its  indignant  condemnation  the 
notion  that  the  State  of  Georgia  was  '  sovereign '  in  any  sense  that 
made  it  independent  of  or  superior  to  the  nation. 

"  Mr.  Justice  "Wilson  said,  '  As  a  judge  of  this  court,  I  know, 
and  can  decide  upon  the  knowledge,^  that  the  citizens  of  Georgia 
when  they  acted  upon  the  large  scale  of  the  Union  as  a  part  of  the 
"  people  of  the  United  States  "  did  not  surrender  the  supreme  or 
sovereign  power  to  that  State ;  but,  as  to  the  purposes  of  the 
Union,  retained  it  to  themselves.  As  to  the  purposes  of  the  Union, 
therefore,  Georgia  is  not  a  sovereign  State.  .  .  .  Whoever  con- 
siders in  a  combined  and  comprehensive  view  the  general  texture  of 
the  Constitution  will  be  satisfied  that  the  people  of  the  United 
States  intended  to  form  themselves  into  a  nation  for  national  pur- 
poses. They  instituted  for  such  purposes  a  National  Government 
complete  in  all  its  parts,  with  powers  legislative,  executive,  and 
judiciary,  and  in  all  those  powers  extending  over  the  whole  nation. 
Is  it  congruous  that,  with  regard  to  such  purposes,  any  man  or  body 
of  men,  any  persons,  natural  or  artificial,  should  be  permitted  to 
claim  successfully  an  entire  exemption  from  the  jurisdiction  of  the 
National  government  ?  '  " 

Thus  far  Mr.  Garfield  in  his  citation  of  this  case,  —  the 
cheval  de  hataille  of  his  school.     Whether    a  decision  ren- 

This  is  a  misrepresentation  of  the  State-rights  doctrine,  which  recognized 
"  the  people  "  of  each  State,  in  some  sense  or  other,  distinguished  from  "the 
government,"  as  the  holder  of  supreme  power.  Compare  ante,  pp.  121, 
124,  n. 

1  It  would  seem  that  Judge  Wilson  thought  himself  qualified  by  his 
oflBce  to  decide  upon  the  liistorical  question  where  tiiat  sovereignty  was 
located  which  gave  him  his  commission.  This  was  evidently  beyond  the 
capacity  of  the  judicial  function.  (Ante.,  p.  5.)  As  a  citizen,  he  was 
obliged  to  recognize  some  sovereign  before  he  could,  as  a  judge,  apply  the 
Constitution  as  law.  In  the  opinion  here  cited  Wilson  argues  as  if  the  posi- 
tion of  a  State  of  tiie  United  States  were  determinable  from  the  Constitution 
itself,  as  law  ;  "  taking  a  combined  and  comprehensive  view,"  whatever  that 
may  be.  But  Mr.  Garfield  presents  the  same  opinion  as  authority  on  a  ques- 
tion of  fact  antedating  both  the  Constitution  and  the  Confederation,  that  is, 
whether  the  States  held  sovereignty  in  1776.  And  on  this  question 
Wilson's  testimony  is  against  Mr.  Garfield's  view,  as  will  appear  from  what 
follows,  post,  pp.  485-487. 


THEORY   OP   OUR   NATIONAL  EXISTENCE.  485 

Meaning  of  Judge  Wilson's  Statement. 

dered  in  a  case  in  which  the  Supreme  Court  appears  in  the 
position  of  utter  failure  on  the  point  of  actual  power  can 
be  called  a  "  great  decision  "  must  be  a  matter  of  taste. 
The  validity  of  the  claims  made  for  the  opinions  in  this 
case,  as  judicial  authority  on  a  question  of  political  fact, 
have  already  been  considered. ^ 

I  have  alread}^  argued  that  the  opinions  delivered  in  this 
case  have  no  political  value,  because  the  decision  of  the 
court  never  had  any  effect  on  the  matter  in  controversy.^ 
But,  conceding  all  the  prestige  claimed  for  that  of  Judge 
Wilson,  it  is  not  at  all  clear  from  the  passages  cited  that 
they  indicate  that  view  of  history  in  support  of  which  they 
were  quoted  by  Mr.  Garfield.  It  is  not  by  any  means  ap- 
parent, in  this  opinion,  that  Judge  Wilson  did  not  recog- 
nize the  citizens  of  Georgia  —  either  the  whole  popidation 
or  the  voters  —  as  constituting  a  sovereign  "  people,"  or  a 
sovereign  State.  The  passages  cited  may  support  the  idea 
that  they,  as  holders  of  all  the  powers  of  sovereignty  in  and 
for  their  State,  when  they  adopted  the  Constitution,  made 
a  division  of  them,  granting  or  delegating  some  to  a  State 
government,  and  reserving  others,  to  be  granted  or  delegated 
by  them,  separately,  or  simultaneously  with  a  like  grant 
from  other  States,  to  a  Government  for  those  purposes 
which  Wilson  here  called  "  National." 

But  if  Judge  Wilson  was  here  cited  for  his  "  name  "  or 
reputation,  and  not  merely  as  a  judge  on  the  bench,  we 
may  recall  the  fact  that  he  has  left  other  records  of  his 
opinions  on  this  subject. 

Mr.  G.  T.  Curtis  devotes  Chapter  XIV.  of  Book  III.  of 

1  Ante,  p.  137.  Mr.  Garfield's  argument  was  made  in  the  course  of  a  heated 
debate,  but  it  compares  well,  for  intrinsic  force,  with  any  more  deliberately 
composed  by  jurists  of  the  same  school.  It  equally  justifies  the  remark  of  the 
English  critic,  that  the  argument  rests  "  on  the  reputation  of  its  advocates  " 
(ante,  p.  312,  n.  3),  and  it  equally'  illustrates  how  the  reputation  of  its  advo- 
cates rests  upon  their  adoption  of  the  argument. 

2  Compare  ante,  p.  138. 


486  THE   QUESTION   OF   A   IIEVOLUTIOX. 

G.  T.  Curtis's  View  of  Wilson's  Theory. 

his  work  on  the  History  of  the  Constitution  to  a  sketch  of 
Wilson  and  a  statement  of  his  views,  and  says  of  him. 
Vol.  I.  p.  463  :  — 

"  During  the  war  he  had  always  considered  the  States,  with 
respect  to  that  war,  as  forming  one  community^  and  he  did  not 
admit  the  idea  that  when  the  Colonies  became  independent  of  Great 
Britain,  they  became  independent  of  each  other.''^  From  the  Dec- 
laration of  Independence  he  deduced  the  doctrine  that  the  States 
by  which  that  measure  was  adopted  were  independent  in  their 
confederated  character  and  not  as  individual  communities.  This 
rather  subtile  distinction  may  seem  now  to  have  been  of  no  practical 
moment,^  since  the  confederation  had  actually  united  the  States  as 
such,  rather  than  the  inhabitants  of  the  States." 

The  remainder  of  Mr.  Curtis's  account  of  Wilson's  views 
relates  to  his  conception  of  the  transaction  called  the  adop- 
tion of  the  Constitution.^  But  if  Mr.  Curtis  has  here 
given  a  correct  description  of  Wilson's  view  of  the  history 
of  the  States  before  that  event,  his  name  cannot  be  in- 
voked to  support  Mr.  Garfield  and  the  modern  nationalists 
in  their  attribution  of  sovereignty  to  the  mass  of  the  in- 
habitants of  the  thirteen  colonies  at  the  Revolution. 

I  think  I  may  fairly  claim  that,  on  the  contrary,  Wilson's 
opinion  supports  the  view  presented  in  this  essay.  The 
weak  point  of  his  conception  of  the  circumstances  was 
one  common  to  all  the  theorists  of  his  time,^  and  is  found 

1  Refers  to  Madison,  Elliot,  v.  78. 

2  Refers  Ibid.  '213. 

8  But  compare  atite,  p.  1*28. 

*  Mr.  Curtis  lias  also  given  extracts  from  Wilson's  speech  on  the  adoption 
of  the  Constitution.  They  seem  to  agree  with  the  view  sustained  by  Mr. 
Curtis,  of  a  perpetual  grant  by  the  States,  to  somebod}',  of  a  portion  of  their 
sovereignty.     Compare  «)i^',  pp.  101, 102. 

^  Compare  ant<',  pp.  122, 124,  and  see  the  citations  from  Chisliolm  v.  Georgia, 
a7ite,  p.  329,  n.  In  a  Centennial  Address,  July  4, 187G,  at  New  York,  the  Rev.  R. 
S.  Storrs,  Jr.,  said  (p.  21),  "  Tliere  was  certainly  nothing  of  tiie  ideal  heroic 
among  the  a«/e-revolutionary  jieople  of  this  country.  They  diil  not  live  for 
sentiment  or  on  it.  They  were  not  doctrinaires,  tliough  thej'  are  sometimes  so 
represented."      The  orator   might  have  said  truly  that  even   the    leaders, 


THEORY   OF  OUR   NATIONAL   EXISTENCE.  487 

Substance  of  Mr.  Garfield's  Propositions. 

ill  this,  —  that  he  attributed  the  possession  of  sovereignty, 
a  priori^  to  all  the  inhabitants  of  a  certain  district  called 
"a  State,"  though  he  was  conscious,  a  posteriori^  that  is,  by 
knowing  what  took  place  every  day  before  his  eyes,  that 
only  a  portion  of  these,  a  comparatively  few  individuals, 
determined  by  laws  derived  from  themselves  corporately, 
actually,  as  voters,'  held  all  the  political  power  that  was  to 
be  held.  The  distinction,  made  by  Wilson,  of  the  States  as 
holding  sovereignty  only  in  union  is,  in  my  opiuioii,  that 
which  gives  the  key  to  our  political  existence.  But  if 
sovereignty  is  attributed  a  ijviori  to  all  the  inhabitants  of 
a  State,  it  would  be  a  "  rather  subtile  distinction,"  as  Mr. 
Curtis  calls  it ;  for  there  would  be  no  reason,  a  priori, 
why  the  whole  mass  of  the  inhabitants  of  the  country,  in- 
stead of  thirteen  separate  masses,  should  not  be  considered 
the  possessor  of  sovereignty. 

To  have  any  consistency  as  a  statement  of  political  doc- 
trine, the  "  counter  propositions  "  offered  ^  by  Mr.  Garfield 
must  be  understood  to  mean  that  "  the  Union,"  which 
is  therein    called  permanently  supreme,   is  not  found  in 

the  so-called  "  fathers  and  founders,"  were  not  doctrinaires  in  reality,  though 
they  constantly  so  represented  themselves,  and  really  supposed  that  they 
were  such.     Compare  mite,  pp.  297,  314. 

1  On  the  13th  January,  1865,  in  a  debate  on  a  proposal  for  a  constitutional 
amendment  to  prohibit  slavery,  Mr.  Garfield  had  presented  the  same  theory 
of  sovereignty  of  the  entire  population  as  one  mass,  stating  "thattlie  mo- 
ment the  revolutionary  Congress  assumed  national  prerogatives,  and  the 
people  by  their  silence  consented,  that  moment  the  people  of  the  colonies  con- 
stituted a  nation  and  that  revolutionary  Congress  was  the  authorized  Gov- 
ernment of  that  nation.  But  the  Declaration  of  Independence  was  '  by  the 
authority  of  the  good  people  '  and  hence  it  was  their  declaration.  .  .  .  The 
sovereignty  of  this  people  was  first  lodged  in  the  revolutionary  Congress,  and 
it  continued  there  until  the  1st  day  of  March,  1781,  when  they  lodged  it  in 
the  Articles  of  Confederation.  They  established  then  a  confederacy  properly 
so-called.  .  ,  .  On  the  21st  day  of  June,  1788,  a  new  lodgment  of  tliis 
sovereignty  of  the  American  people  was  made.  It  was  then  lodged  in  tiiis 
Constitution,"  etc.  Cong.  Globe,  2d  Sess.  38th  Cong.  p.  264.  This  argu- 
ment, or  method,  of  knowing  the  will  of  a  sovereign  people  from  "  their 
silence  "  resembles  that  from  "  acquiescence  and  obedience  of  the  people,  " 
ante,  pp.  316,  348,  n. 


488  THE   QUESTION   OF   A   REVOLUTION. 

Conversation  of  Bismarck  and  Grant. 

the  States  in  their  voluntary  union,  but  in  a  government 
regulated  bj  its  own  interpretation  of  a  written  Constitu- 
tion, supposed  to  act  of  its  own  intrinsic  authority  as  a  law 
for  States  and  natural  persons,  without  reference  to  any 
political  choice  on  the  part  of  those  States  which  are  known 
in  international  relations  as  "  the  United  States,"  ^  and 
that  the  only  sovereign  external  to  that  Constitution  is  a 
hypothetical  nation,  whose  will  is  known  only  by  the 
action  of  the  political  party  controlling  the  general  Gov- 
ernment in   accordance  with  this  theory. 

For  any  who  have  followed  the  argument  of  this  essay 
it  will  be,  I  hope,  superfluous  to  remark  that  I  regard  this 
statement  of  history  as  entirely  baseless,  and  this  statement 
of  political  doctrine  as  contradicted  by  the  actual  political 
experiences  of  the  country  ;  unless  what  has  happened 
since  1861  records  a  revolutionary  change  in  the  seat  of 
sovereign  power. ^ 

But  such  a  statement  is  only  one  illustration  among 
many  of  the  consequences  Avhich  the  theory  attributed  to 
Story  and  Webster,  and  noAv  represented  by  Mr.  Pomeroy 
and  otliers,  already  cited,  involves,  and  which  are  exposed 
when  that  theorj^  is  used  to  explain  the  events  of  the  war 
and  of  the  Reconstruction  era. 

The  following  conversation  is  reported  to  have  taken 
place  between  General  Grant  and  Prince  Bismarck,  the 
Chancellor  of  the  German  Empire.^ 

1  Tliat  the  States  are  so  recognized,  see  anli',  pp.  315-319. 

2  When  Mr.  Garfield  liad  finished  his  remarks  on  tliis  occasion,  Mr.  Frank 
H.  Ilurd,  also  a  member  from  the  State  of  Oiiio,  obtaining  the  floor,  said, 
"  My  colleague  has  seen  fit  to  enter  upon  a  disquisition  as  to  the  nature  of  the 
Federal  government  and  the  relations  of  the  States  to  that  government  under 
the  Constitution  which  tliey  created.  Never,  in  all  my  studies  of  the  political 
liistory  of  this  country,  never,  in  all  my  knowledge  of  the  political  debates 
whi(!h  have  taken  ])lace  in  the  Congress  of  the  United  States,  have  I  i^eard 
such  views  of  consolidation  advanced  as  have  been  suggested  to-day  ])y  that 
gentleman."      Cong.  Hecord,  4(Jth  Cong.  pp.  23-90. 

3  June,  1878,  Around  the  World  with  General  Grant,  by  J.  R.  Young,  Vol. 
L  p.  416. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  489 

Language  of  Grant  and  Bismarck. 

" '  Yes,'  said  the  Prince,  '  you  had  to  save  the  Union,  just  as  we 
had  to  save  Germany.' 

" '  Not  only  save  the  Union,  but  destroy  slavery,'  answered  the 
General. 

"  '  I  suppose,  however,  the  Union  was  the  real  sentiment,  the  domi- 
nant sentiment?'  said  the  Prince. 

"  '  In  the  beginning,  yes,'  said  the  General ;  '  but  as  soon  as  slavery 
fired  upon  the  flag,  it  was  felt  —  we  all  felt,  even  those  who  did  not 
object  to  slaves  —  that  slavery  must  be  destroyed.  We  felt  that  it 
was  a  stain  to  the  Union  that  men  should  be  bought  and  sold  like 
cattle.' " 

It  is  not  an  unreasonable  inference  from  this  dialogue 
that  the  questioner  understood  the  subject  somewhat  better 
than  did  the  respondent.  But  this  does  not  appear  so  nluch 
from  the  former's  mention  of  saving  the  Union,  as  being  the 
main  object  of  the  war,  as  from  his  supposing  a  parallel  in 
it  with  the  experiences  of  Germany. 

The  phrases  "  to  save  Germany "  and  "  to  save  the 
Union"  are  each  figures  of  speech,  and,  as  such,  necessarily 
liable  to  mislead.  The  expression  that  our  civil  war  was  a 
war  to  preserve  the  Union  is  especially  deceptive.  It  has 
been  generally  understood  as  meaning  that  the  object  of 
the  war,  as  carried  on  under  the  leadership  of  the  general 
Government,  was  to  compel  eleven  States,  as  so  many  distinct 
political  personalities,  to  remain  united  with  other  similar 
States,  from  which  they  desired  to  separate  themselves. 

The  object  of  this  essay  has  been  to  show  that  this  end 
was  not  the  end  needed,  and,  moreover,  that,  as  matter  of 
fact,  it  was  not  the  result  attained. 

The  Union  did  not  require  saving,  in  that  sense  ;  because, 
if  saved  in  that  sense,  it  was  not  a  imion  at  all.  For,  in 
that  sense,  it  was  subjugation  of  one  set  of  States  by  an- 
other, and  the  possibility  of  any  rebellion  or  treason  on  the 
part  of  anybody  in  those  eleven  States  was  excluded.^ 

The  Union  did  not  require  saving,  because  the  United 

1  Compare  ante,  p.  286,  concluding  chapter  viii. 


490  THE   QUESTION   OF   A   REVOLUTION. 

Meaning  of  ''  Saving  the  Union." 

States  were  to  be  found  in  those  States  exclusively  Avhich 
continued  in  the  former  voluntary  union,  in  which  alone 
each  and  any  or  every  State  had  been,  or  could  continue 
to  be,  a  State  of  tlie  United  States. 

But  the  Union  was  to  be  saved  in  this  sense, — that  the 
sovereignty  of  the  United  States,  that  is,  of  the  States  con- 
tinuing in  their  voluntary  union  (not  the  authority  of  the 
general  Government,  except  as  their  agent,  still  less  of  the 
Constitution  as  a  self-existing  law)  was  to  be  maintained 
throughout  tlie  whole  domain  which  had  ever  been  under 
that  sovereignty,  —  a  domain  identical  with  the  wdiole 
domain  of  the  United  States  when  those  eleven  States  were 
participants  of  the  same  sovereignty.^ 

In  the  same  sense,  Germany  had  to  be  saved,  or  was 
saved,  because  a  political  personality,  or  aggregate  of 
political  personalities,  at  the  head  of  which  was  the  King 
of  Prussia,  maintained  and  extended  their  political  au- 
thority thoughout  the  country  which  is  now  known  as 
the  German  Empire  ;  not  only  over  the  domain  which  they 
had  held  severally  before  the  war,  but  over  the  outlying 
domains  of  other  political  personalities,  who  were  treated  by 
them  as  having  abdicated  or  dispossessed  themselves  of 
authority  in  those  territories  which,  as  sovereigns  of  a 
united  Germany,  the  King  of  Prussia  and  his  allies  claimed 
as  parts  of  one  country  under  their  dominion. 

Supposing  this  parallel  in  the  mind  of  the  German  who 
had  been  tlie  chief  instrument  in  effecting  this  savin/j  Ger- 
many by  making  Prussia  or  its  hereditary  dynast}-  the  sove- 
reign of  a  Germany  so  saved,  one  may  understand  what 
Bismarck  meant  by  saying  —  "  you  had  to  save  the  Union" 
and  "  the  Union  was  the  dominant  sentiment." 

Any  European  statesman  would  know  that  if  the  war  in 
America  was  a  civil  war, — not  an  international  war,  nor 
yet  a  huge  riot,  —  there  was  necessarily  some  actual  political 
personality,  who  might  be  one  natural  person,  or  a  collection 

1  Ante,  p.  145. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  491 

Truth  in  Earl  Russell's  Expression. 

of  natural  persons  holding  sovereignty  as  a  unit,  who,  as 
sovereign,  was  putting  clown  the  resistance  of  rebellious 
subjects,  —  not  subject  states,  but  subject  natural  persons. 

He  would  know,  moreover,  that  the  question  whether 
slavery  was  good  or  bad,  whether  it  was  morally  right  or 
wrong  "  to  buy  and  sell  men  like  cattle,  "  had  nothing 
to  do  with  the  questions  of  allegiance,  treason,  and  rebellion. 

Earl  Russell  at  the  beginning  of  the  war  said,  "  The 
struggle  is  now  felt  to  be  one  for  independence  on  the  part 
of  the  South,  and  for  empire  on  the  part  of  the  North." 
This  terse  expression  was  essentially  true.  For  the  North- 
ern States,  being  "  The  United  States,"  contended  to  main- 
tain their  sovereignty,  their  imperium,  in  the  original  sense 
of  the  word,  which  applies  as  well  to  republics  as  to  mon- 
archies.i  The  populations  of  the  South  contended  to  break 
from  this  imperium  and  to  make  for  themselves  a  confede- 
racy of  independent  States.  There  Avould  have  been  no 
mystery  about  this,  if  explained  to  any  European  publicist. 

Can  it  be  inferred  from  the  replies  of  the  American  Gen- 
eral, that,  if  "  the  flag  "  had  been  "  fired  upon  "  from  the 
soil  of  a  non-slave-holding  State,  he  could  not  have  told 
who  or  what  directed  the  shot,  or  would  have  been  at  a  loss 
to  know  what  were  his  obligations  as  a  soldier?  Can  it  be 
tliat  he  regarded  himself  as  having  been  only  the  military 
chief  of  a  crowd  of  citizens  in  arms,  known  simply  as  "  we,  " 
who,  being  individually  opposed  to  slavery,  were  knocking 
others  in  the  head  because  they  differed  from  them  about 
"  buying  and  selling  men  like  cattle  "  ? 

The  man  who  sheds  the  blood  of  his  fellow-men  without 
the  warrant  of  a  political  sovereign,  simply  to  make  others 
accept  his  own  ideas  of  political  or  social  justice,  is,  by  the 
common  jurisprudence  of  the  world,  an  outlaw  on  land  and 
a  pirate  by  sea.^ 

1  Compare  Dr.  Maine,  ante,  p.  329. 

2  Yet  upon  this  basis  Mr.  Garfield  appeared  to  wish  to  rest,  iu  liis  spcucli 


492  THE   QUESTION   OF  A   REVOLUTION. 

View  in  Stephen's  Llbertj',  Equality,  and  Fraternity. 

If  this  was  the  true  view  of  our  case,  the  war  was  a  huge 
riot,  and  Carlyle  was  justified  in  comparing  it  to  the  burn- 
ing out  of  a  foul  chimney. 

That  the  conflict  of  opinions  in  individual  minds,  as  to  the 
desirability  of  nationality  or  its  opposites,  or  as  to  the  moral 
aspect  of  slavery  or  its  contraries,  had  nothing  to  do  with 
the  essential  question  of  the  right  of  the  government  at 
Washington  to  resist  secession  as  rebellion,  —  aj)pears  from 
the  fact  that  their  opinions  on  these  points  determined 
the  sympathies  of  outside  observers,  who  did  not  under- 
stand the  real  political  situation,  but  who  regarded  our 
civil  war  as  essentially  an  international  war,  —  a  war  between 
two  sets  of  states,  equally  capable  of  belligerency,  because 
equally  independent  in  respect  to  each  other. 

It  is  highly  probable  that  this  has  been  the  view  gen- 
erally accejDted  in  England,^  and,  though  I  do  not  feel  cer- 
tain as  to  the  author's  own  concejDtion  of  our  case,  I  refer 
to  Sir  James  Fitzjames  Stephen's  "  Liberty,  Equality,  and 
Fraternity  "  as  showing  the  probability  of  this,  in  some  pas- 
ages  which  I  propose  to  cite,  not  for  this  only,  but  as  also 
showing  the  true  meaning  of  such  phrases  as  "  settled  b}^  the 
war"  and  ultima  ratio  regum,  when  used  to  explain  a  civil 
contest. 

In  the  fourth  cliapter,  entitled  "  The  Doctrine  of  Liberty 
in  its  Relations  to  Morals,"  this  author  (page  164  of  the 
American  reprint)  observes  :  — 

"  I  have  now  said  what  I  had  to  say  on  the  action  of  law  and  of 
public  opinion  in  regard  to  the  encouragement  of  virtue  and  the  pre- 
vention of  vice.     .     .     . 

June  27,  1879,  notwithstanding  his  argument  from  history.  He  said, 
"  But  the  truth  requires  me  to  say  that  tliere  is  one  indisputable  ground 
of  agreement  on  wiilch  alone  we  can  stand  together,  and  that  is  this:  —  the 
war  for  the  Union  was  right,  everlastingly  right,  and  the  war  against  the 
Union  was  wrong,  everlastingly  wrong."     Cong.  Rec.  46th  Cong.  p.  2o90. 

1  How  far  Mr.  G.  T.  Curtis  may  have  succeeded  in  convincing  his  English 
friends  of  the  rights  of  the  matter  by  his  theory  of  the  divisibility  of  sove- 
reignty I  do  not  pretend  to  judge.     Compare  ante,  p.  2'Jy. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  493 

Sir  James  Stephen  on  Force  in  National  Relations. 

"  Before  taking  leave  of  this  part  of  the  subject,  I  will  make  some 
observatious  upon  a  topic  closely  connected  with  it,  —  I  mean  the 
compulsion  which  is  continually  exercised  by  men  over  each  other  in 
the  sternest  of  all  possible  shapes,  —  war  and  conquest.  The  effect 
of  these  processes  upon  all  that  interests  men  as  such  can  hardly  be 
overrated.  War  and  conquest  determine  all  the  great  questions  of 
politics  and  exercise  a  nearly  decisive  influence  in  many  cases  upon 
religion  and  morals.  We  are  what  we  are  because  Holland  and 
England  in  the  sixteenth  century  defeated  Spain,  and  because  Gus- 
tavus  Adolphus  and  others  successfully  resisted  the  Empire  in 
Northern  Germany.  Popular  prejudice  and  true  political  insight 
agree  in  feeling  and  thinking  that  the  moral  and  religious  issues  de- 
cided at  Sadowa  and  Sedan  were  more  important  than  the  politi- 
cal issues.  Here,  then,  we  have  compulsion  on  a  gigantic  scale 
producing  vast  and  durable  political,  moral,  and  religious  effects. 

"  When,  however,  we  come  to  consider  the  relations  of  independ- 
ent nations  to  each  other,  a  totally  different  set  of  considerations 
present  themselves.  Nations  have  no  common  superior.  Their 
relations  do  not  admit  of  being  defined  with  the  accuracy  which  the 
application  of  criminal  law  requires,  nor,  if  they  were  so  defined, 
would  it  be  possible  to  specify  or  to  inflict  the  sanctions  of  criminal 
law.  The  result  of  this  is  that  nations  always  do  consider  for 
themselves  in  every  particular  case  as  it  arises  how  their  interests 
are  to  be  asserted  and  protected,  and  whether  or  not  at  the  expense  of 
war.  Even  in  the  case  of  such  references  to  arbitration  as  we  have 
lately  seen  this  is  true.  The  arbitrators  derive  their  whole  author- 
ity from  the  will  of  the  parties,  and  their  award  derives  its  authority 
from  the  same  source. 

"  Such  being  the  relations  between  nation  and  nation,  all  his- 
tory, and  especially  all  modern  history,  shows  that  what  hap- 
pens in  one  nation  affects  other  nations  powerfully  and  directly. 
Indeed,  the  question  what  a  nation  is  to  be  —  how  much  or  how 
little  territory,  how  many  or  how  few  persons,  it  is  to  com- 
prehend —  depends  largely  on  the  state  of  other  nations.  A 
territory  more  or  less  compact,  inhabited  by  a  population  more 
or  less  homogeneous,  is  what  we  mean  by  a  nation ;  but  how  is 
it  to  be  determined  where  the  lines  ai-e  to  be  drawn?  Who  is 
to  say  whether  the  Rhine  or  the  Vosges  is  to  divide  France  from 


494  THE   QUESTION   OF   A   REVOLUTION. 

Sir  James  Stephen  on  Force  in  International  War. 

Germany  ?  —  whether  the  English  and  the  "Welsh,  the  Scotch  and 
the  Irish,  are  or  are  not  homogeneous  enough  to  form  one  body 
politic?  To  these  questions  one  answer  only  can  be  given,  and 
that  is,  Force,  in  the  widest  sense  of  the  word,  must  decide  the 
question.  By  this  I  mean  to  include  moral,  intellectual,  and  physical 
force,  and  the  power  and  attractiveness  of  the  beliefs  and  ideas  by 
which  different  nations  are  animated.  All  great  wars  are  to  a 
greater  or  less  extent  wars  of  principle  and  sentiment ;  all  great 
conquests  embrace  more  or  less  of  a  moral  element.  Given  such 
ideas  as  those  of  Protestants  and  Catholics  in  the  sixteenth 
century  suddenly  seizing  upon  the  nations  of  Europe,  religious  wars 
were  inevitable ;  -^  and  in  estimating  their  character  we  must  take  into 
account  not  merely  the  question,  Who  was  on  the  offensive  ?  Who 
struck  the  first  blow  ?  but  much  more  the  question,  Which  of  the 
conflicting  theories  of  life,  which  of  the  opposing  principles  brought 
into  collision,  was  the  noblest,  the  truest,  the  best  fitted  for  the  de- 
velopment of  the  powers  of  human  nature,  most  in  harmony  with 
the  facts  which  surround  and  constitute  human  life  ?  " 

I  think  it  appears  clearly  from  the  above,  as  well  as  from 
the  whole  tenor  of  the  author's  remarks  in  this  connection, 
that  he  is  speaking  of  the  moral  justification  of  loar  properly 
so  called,  —  war  looked  upon  as  an  international  relation. 
His  reference  is  to  wars  carried  on  by  one  legitimate  pos- 
sessor of  political  power  against  another  legitimate  pos- 
sessor of  political  power ;  wars  which  may  result  in  the 
subjugation  or  conquest  of  one  of  the  parties  belligerent  by 
the  other ;  wars  which  may  be  followed  by  a  change  of 
dominion,  a  transfer  of  territory  and  population  from  the 
rule  of  one  political  sovereign  to  that  of  another.  He  is 
speaking  of  wars  which,  whatever  may  be  the  motives, 
desires,  or  hopes  of  the  contending  parties,  are  carried  on 
without  any  question  of  the  duty  of  the  subjects  or  citizens 

1  Tiiese  wars  were  none  tlie  less  international  wars,  wars  between  polit- 
ical organizations  or  states  of  some  kind.  Tliey  were  not  wars  between  so 
many  thousand  Catholics  and  so  many  tliousand  Protestants.  Their  re- 
spective creeds  did  not  determine  the  political  obligations  of  tiie  citizens  or 
Bubjects  of  tiie  ditferent  states  engaged  in  these  wars. 


THEOKY   OF   OUR   NATIONAL   EXISTENCE.  495 

Sir  James  Stephen  on  the  American  Civil  War. 

of  each  towards  their  respective  sovereigns,  or  states,  as  the 
parties  conducting  the  war  ;  of  wars  which,  even  if  they  can 
be  called  religious  wars,  or  wars  of  sentiment,  are  wars  from 
which  all  ideas  of  revolution,  on  the  part  of  the  prevailing 
party,  and  of  rebellion,  on  the  part  of  the  defeated  party, 
are  absolutely  excluded. 

He  is  speaking  of  force  or  compulsion  ;  and  in  this  place 
he  distinguishes  it  from  the  force  or  compulsion  which  he 
had  been  indicating  as  the  foundation  of  law,  —  that  force 
or  compulsion  which  is  the  foundation,  according  to  his 
belief,  of  each  and  every  state,  nation,  or  political  com- 
munity, as  distinguished  from  foundations  in  the  consent 
of  the  governed  or  in  Mr.  Mill's  theory  of  general  utility.^ 

Immediately  after  the  passage  above  quoted  Sir  James 
Stephen  says :  — 

"  The  most  pointed  and  instructive  modern  illustration  of  this 
that  can  possibly  be  given  is  supplied  by  the  great  American  civil 
war.  Who,  looking  at  the  matter  dispassionately,  can  fail  to  per- 
ceive the  vanity  and  folly  of  the  attempt  to  decide  the  question  be- 
tween the  North  and  the  South  by  lawyers'  metaphysics  about  the 
true  nature  of  sovereignty  or  by  conveyancing  subtleties  about  the 
meaning  of  the  Constitution  and  the  principles  by  which  written  docu- 
ments ought  to  be  interpreted?  You  might  as  well  try  to  infer  the 
fortunes  of  a  battle  from  the  shape  of  the  firearms.  The  true  ques- 
tion is,  What  was  the  real  gist  and  essence  of  the  dispute  ?  What 
were  the  two  sides  really  fighting  for  ?  Various  answers  may  be 
given  to  these  questions  which  I  need  neither  specify  nor  discuss, 
but  the  answer  to  them  which  happens  to  be  preferred  will,  I  think, 
settle  conclusively  the  question  which  way  the  sympathies  of  the 
person  who  accepts  that  answer  should  go." 

From  this  paragraph  I  infer  that,  while  the  author 
probably  sympathized  with  one  or  the  other  of  those  whom 
he  indicates  by  the  terms  "  the  North  "  and  "  the  South," 
he  had  accepted,  without  a  doul)t  on  that  point,  that  theory 

1  Sir  James  Stephen's  book  is  written  avowedly  in  oppposition  to  Mill's 
Essay  on  Liberty. 


496  THE   QUESTION   OF   A   REVOLUTION. 

Application  of  Stepiien's  Doctrine. 

of  the  war  which  had  always  been  and  which  still  is  ad- 
vanced by  those  whom  he  knows  as  "  the  South  "  ;  that  is,  I 
infer  that  he  regards  the  war  as  an  inter-s^a^e  war,  a  war 
carried  on  between  two  equally  legitimate  sovereigns.  In 
this,  he  probably  agrees  with  the  vast  majority  of  all  Eng- 
lishmen who  have  noticed  the  subject,  to  whichever  side 
their  sympathies  may  have  inclined,^ 

Taking  this  view,  he  is  perfectly  consistent  in  scouting  all 
considerations  of  the  meaning  of  the  Constitution  as  law, 
or  of  its  interpretation  as  a  written  document.  To  his 
mind,  it  could  not  be  a  law  or  a  statute  ;  it  was  a  treaty- 
compact  only,  and  law  so  long  as  it  was  a  treaty  subsisting 
by  the  will  of  both  parties  ;  but  no  longer.  Those  who,  to 
his  mind,  made  it  had,  to  his  mind,  dissolved  it. 

In  this  essay,  I  also  have  endeavored  to  show  that  the 
position  of  the  parties  to  the  war  could  not  be  settled  by 
the  Constitution,  nor  by  any  constitution,  regarded  as  law. 
I  have  tried  to  show  that  the  question  —  whether  the 
Southern  theory  of  our  national  existence  was  the  true  one, 
or  some  other  view,  inconsistent  with  the  claim  of  secession 
and  with  the  existence  of  such  a  war  as  Sir  James  supposed 
—  is  not  determinable  by  "lawj^ers'  metaphysics  "  about  the 
divisibility  of  sovereignty  and  "  conveyancing  subtleties 
about  the  meaning  of  the  Constitution,"  but  is  simply  a 
historical  question. 

That  foreigners  have  never  understood  this  is  not  their 

fault.     The  fault  was  with  our  fathers  and  "  the  founders  " 

1  For  illustration  I  refer  to  "  A  Letter  to  a  Whig  Member  of  the  South- 
ern Independence  Association "  (an  English  affair),  by  Goldwin  Smith. 
18G4.  Boston  edition.  Ticknor  &  Fields.  In  this,  the  author  founded  his 
argument  entirely  on  the  question  of  sympathy  with  or  against  slavery.  He 
used  the  term  "tlie  Americans,"  throughout,  as  meaning  only  the  Northern 
States :  —  "  The  Americans,  1  fully  grant,  were  entitled  to  no  sympathy  while 
they  remained  accomplices  with  slavery,"  p.  24.  Tliough,  against  Earl  Rus- 
sell's expression  {a7ite,  p.  491),  he  asserted  that  the  war  was  carried  on,  on 
the  part  of  the  North,  to  "maintain  the  existing  Union,"  he,  througjiout, 
spoke  of  it  as  a  "  Federal "  union,  and  repeatedly  asserted  that,  but  for  the 
emancipation  question,  he  was  opposed  to  the  war  and  favored  a  peaceable 
separation.    lb.  pp.  25,  27.     Compare  also,  ante,  pp.  56,  57. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  497 

Dependence  of  Liberty  upon  Power. 

and  with  ourselves.  Our  fathers  never  knew,  or  never  told, 
what  they  meant  by  "the  United  States," ^  and  we  have 
not,  to  this  day,  succeeded  in  making  other  people  under- 
stand what  we  mean  by  the  words.  Perhaps  we  our- 
selves do  not  know. 

But  the  sentences  which,  in  Stephen's  treatise,  follow 
those  last  cited  have  a  more  direct  application  to  our  cir- 
cumstances. Though  they  are  simple  common-sense,  they, 
as  declaration  of  principle  on  which  all  nations  must  rest, 
outweigh  all  "  the  glittering  generalities  "  our  fathers  could 
pick  up  from  the  rubbish  of  the  eighteenth-century  philo- 
sophy.    The  author's  conclusion  is,  — 

"It  seems,  then,  that  comiiulsion  in  its  most  formidable  shape  and 
on  the  most  extensive  scale  —  the  compulsion  of  war  —  is  one  of 
the  principles  which  lie  at  the  root  of  national  existence.  It  de- 
termines whether  nations  are  to  be  what  they  are  to  be.  It 
decides  what  men  shall  believe,  how  they  shall  live,  in  what  mould 
their  religion,  law,  morals,  and  the  whole  tone  of  their  lives  shall  be 
cast.  It  is  the  ratio  ultima  not  only  of  kings,  but  of  human  society 
in  all  its  shapes.  It  determines  precisely,  for  one  thing,  how  much 
and  how  little  individual  liberty  is  to  be  left  to  exist  at  any  specific 
time  and  place. 

"  From  this  great  truth  flow  many  consequences,  some  of  which  I 
have  already  referred  to.  They  may  all  be  summed  up  in  this 
one,  that  power  precedes  liberty  —  that  liberty,  from  the  very  nature 
of  things,  is  dependent  upon  power ;  and  that  it  is  only  under  the 
protection  of  a  powerful,  well-organized,  and  intelligent  government 
that  any  liberty  can  exist  at  all." 

A  government  in  this  sense  —  a  government  which  is  the 
cause  and  not  the  effect  of  liberty  —  is  a  government  not 
under  law,  but  above  law  ;  a  government  which  is  not 
under  a  constitution,  but  above  all  constitution  ;  which 
makes  or  grants  constitutions,  so  far  there  are  any  constitu- 
tions.2 

1  Ante,  p.  297. 

2  Constitutions,  if  they  are  to  exist  at  all,  must  exist  by  the  will  and  act  of 
some  pre-existing  povver-liolders.     To  suppose  them  to  originate  in  the  will  or 


498  THE   QUESTION    OF   A   REVOLUTION. 

The  American  Doctrine  of  Revolution. 

But  conceptions  such  as  these  we  have  been  brought  up 
from  our  earliest  childhood  to  detest  and  abhor.  We  have 
been  taught  to  kick  against  the  idea  that,  individuall}^  we 
must  be  subject  to  somebody,  and  that  our  liberty  is  the  re- 
sult of  our  receiving  somebody's  protection.^  The  contrar}'- 
conceptions  are  blazoned  forth  on  every  side,  by  "  people 
who  have  the  gift  of  using  pathetic  language, "^  from  ever}'' 
platform,  pulpit,  and  newspaper  in  the  land,  and  by  none 
more  than  by  those  same  writers  and  speakers  who  are  now 
glorifying  themselves  on  account  of  that  exhibition  of 
force  which,  they  say,  maintained  the  Union  and  fulfilled 
the  promises  of  1776,  etc. 

In  connection  with  the  general  question  of  political  al- 
legiance, the  American  ^  doctrine  of  a  right  of  revolution 
cannot  pass  altogether  unnoticed.  The  practical  import- 
ance of  considering  it  may  appear  from  a  debate  which 
arose  in  the  House  of  Representatives,  during  the  first 
session  of  the  Thirty-Eighth  Congress,  on  a  motion  for  the 
expulsion  of  JSIr.  Long,  one  of  the  members  from  the  State 
of  Ohio,  on  account  of  remarks  made  on  the  8th  April, 
1864,  in  favor  of  discontinuing  the  war.^     Mr.  Garfield,  at 

authority  of  the  governed  is  to  suppose  a  contradiction.  But  tlie  oldest  and, 
in  a  sense,  the  most  conservative  newspaper  in  Boston,  April  13, 1881,  scouted 
the  idea  that  a  constitution  for  the  Russian  Empire  could  originate  in  the  act 
of  the  autocratic  iiead,  without  the  co-operation  of"  the  numerical  majority." 

^  See  the  theories  of  the  several  justices  in  Cliisholm  v.  Georgia,  and 
particularly  the  opinion  by  Wilson,  J.,  full  of  such  propositions  as, "  The  only 
reason,  I  believe,  why  a  freeman  is  bound  by  human  laws  is  that  he  binds 
himself."    2  Dallas,  p.  456.     Also  citation  from  Jay's  Opinion,  ante,  p.  329. 

2  Stephen's  "  Liberty,"  etc.,  p.  175. 

8  One  may  be  justified  in  this  designation  from  the  fact  that  there  is 
probably  no  other  country  in  the  world  where  resistance  to  its  own  authority 
would  be  spoken  of  b}' any  branch  of  an  existing  government  as  a  right,  least 
of  all  by  tlie  judiciary.  Compare  ante,  p.  189,  n.  But,  whatever  the  doc- 
trine may  be,  it  does  not  as  yet  correspond  to  that  which  is  known  to  the 
aspirations  of  certain  political  theorists,  in  France  especially,  as  "  the  Revo- 
luti{m,"  meaning  something  permanently  continuing,  which  shall,  in  tlie 
future,  realize  the  sovereignty  of  tlie  people  by  abolishing  all  existing  forms 
of  government,  even  such  as  are  now  known  as  republican. 

*  38th  Cong.  1st  Sess.  Cong.  Globe,  1499. 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  499 

Mr.  Garfield  on  the  Eight  of  Revolution. 

that  time  a  member  from  the  same  State,  took  the  leading 
part  against  Mr,  Long,  and  in  the  course  of  the  debate 
said :  ^  — 

"  But  the  gentleman  takes  higher  ground,  and  in  that  I  agree 
with  him,  namely,  that  five  millions  or  eight  millions  of  people  pos- 
sess the  right  of  revolution.  Grant  it ;  we  agree  there.  If  fifty 
men  can  make  a  revolution  successful,  they  have  the  right  of  revo- 
lution. If  one  State  wishes  to  break  its  connection  with  the  Fed- 
eral Government  and  does  it  by  force  maintaining  itself,  it  is  an 
independent  State.  If  the  eleven  Southern  States  are  determined  to 
secede,  to  revolutionize,  and  can  maintain  that  revolution  by  force, 
they  have  the  revolutionary  right  to  do  so.  Grant  it,  I  stand  on 
that  platform  with  the  gentleman. 

"  And  now  the  question  comes,  Is  it  our  constitutional  duty  to 
let  them  do  it  ?  " 

After  some  remarks,  picturing  the  consequences  to  be 
anticipated  from  recognizing  the  separation  of  the  Northern 
and  Southern  States,  and  drawing  a  parallel  between  co- 
ercion exercised  to  maintain  them  in  union,  and  coercion 
as  an  ordinary  incident  of  all  municipal  laws,  criminal  or 
civil,^  Mr.  Garfield  said:  — 

"  I  said  a  little  while  ago  that  I  accepted  the  proposition  of  the 
gentleman,  that  the  rebels  had  the  right  of  revolution ;  and  the  de- 
cisive issue  between  us  and  the  rebellion  is  whether  they  shall  revo- 
lutionize and  destroy  or  we  shall  subdue  and  preserve. 

"  We  take  the  latter  ground.  We  take  the  coijimon  weapons  of 
war  to  meet  them ;  and  if  these  be  not  sufficient,  I  would  take  any 
element  which  will  overwhelm  and  destroy ;  I  would  sacrifice  the 
dearest  and  best  beloved ;  I  would  take  all  the  old  sanctions  of  law 
and  the  Constitution  and  fling  them  to  the  winds,  if  necessary 
rather  than  let  the  nation  be  torn  in  pieces  and  its  people  destroyed 
with  endless  ruin." 

Here,  Mr.  Garfield,  while  recognizing  a  right  of  revolu- 
tion, in  some  sense  of  the  word  "  right,"  avoided  the  natural 

1  38th  Cong.  1st  Sess.  Cong.  Globe,  1503.        2  Xo  be  cited  post,  p.  502. 


600  THE   QUESTION   OF   A   EEVOLIJTTON. 

On  Revolution  as  a  Right. 

conclusion  that  it  should  be  accepted  as  such,  or  that  he, 
at  least,  would  acquiesce  in  the  desired  political  change. 
For  he  claimed  an  antagonistic  right  to  resist  it,  —  not  a 
legal  right  to  resist  it,  but  a  counter-revolutionary  right.^ 
In  this  he  appeared  to  abandon  all  question  of  duty  to  a 
recognized  political  superior  and  to  make  the  question  of 
political  expediency  between  himself  and  anybody  else 
depend  simply  on  the  issue  of  brute  force. 

However  absurd,  logically  speaking,  the  position  may 
seem  that  one  may  have  a  right  which  it  is  the  duty  of  some 
one  else  to  resist,  Mr.  Garfield's  position  in  this  debate 
illustrates  the  truth  that  it  is  the  fact  of  success  only  that 
makes  revolution  a  right  in  any  sense  worth  noticing. 
He  proposed  to  treat  any  resistance  to  the  Government, 
whether  it  came  from  few  or  from  many,  as  rebellion,  as 
long  as  it  was  unsuccessful,  and  to  recognize  it  as  rightful 
if  that  resistance  could  not  be  put  down. 

But  there  are  very  few,  probably,  among  those  who 
speak  of  "  the  right  of  revolution  "  who  would  be  equally 
candid.  It  is  more  common  to  conceive  of  revolution  as  a 
right  attributable  only  to  the  entire  population  of  some 
more  or  less  considerable  territory,  and  as  one  which,  if 
claimed  by  such  an  entire  population,  or  by  some  indefin- 
itel}^  large  majority  in  such  population,  ought,  in  view  of 
American  pul)lic  law  at  least,  to  be  recognized  at  once, 
without  resist&,nce  on  the  part  of  an}^  previous  possessor  of 
political  power  over  the  same  territory .^ 

J  Compare  Jameson's  Const.  Con  v.  §  111,  on  "  counter-revolutionary 
acts." 

2  At  the  outbreak  of  tlie  secession  movement,  this  notion  of  a  right  of 
revolution  had  more  or  less  effect  in  disturbhig  the  judgments  of  people  at 
the  North  without  reference  to  their  sympatiiy  with  or  opposition  to  the 
State  rights  theory.  In  the  debate  on  ]\Ir.  Long's  expulsion,  Mr.  S.  S.  Cox, 
a  representative  from  Ohio,  defending  Mr.  Long,  April  8,  1864,  caused  to  be 
read,  from  the  clerk's  desk,  various  extracts  from  the  New  York  Tribune  in 
tlie  years  1860  and  1861,  with  otliers  from  speeches  by  Mr.  Wade,  of  Ohio, 
in  the  3-lth  Congress,  and  by  Mr.  Lincoln,  in  1848,  all  asserting  revolution  as 


THEORY   OF   OUR    NATIONAL  EXISTENCE.  501 

Theory  of  the  American  Revolution. 

To  this  conception  of  revolution  as  a  right  may  be  at- 
tributed the  origin  of  that  hypothesis  which  ascribes  the 
possession  of  sovereignty,  at  the  moment  of  the  Revolu- 
tion of  1776,  to  the  entire  mass  of  the  population  as  dis- 
tinguished from  the  States  or  from  the  political  peoples  of 
the  States,  either  united  or  several. 

The  argument  seems  to  be  that  any  transfer  of  sov- 
ereignty which  we  may  rightly  call  a  revolution  must  not 
be  regarded  simply  as  historical  fact,  but  as  a  transaction 
resting  on  some  law  or  principle  of  jDolitical  morality  ;  that 
such  a  transfer  by  revolution  is  so  sanctioned  only  as  the  right 
or  faculty  of  the  entire  mass  of  the  population  without  refer- 
ence to  any  pre-existing  political  organization  ;  and  that  as 
the  transaction  occurring  in  1776  has  been  accepted  as  revo- 
lution, it  must  now  be  recognized  by  everybody  as  the  act 
of  the  entire  mass  of  the  population,  in  distinction  from 
the  act  of  the  States  or  pre-existing  colonies.^ 

But  the  truth  is  that  this  American  Revolution  of  1776 
has  its  place  in  history  simply  as  a  fact,  without  any  refer- 
ence to  legal  or  ethical  justification.  It  is  one  fact  in  a 
class  of  facts  which  includes  many  others  which  are  known 
in  history  as  usurpations.  Whether  called  revolutions  or 
usurpations,  they  are  equally,  in  their  essence,  only  changes 
in  the  location  of  sovereign  power,  which  as  facts  are  rec- 

a  right  on  wliich  secession  might  be  recognized.  (Globe,  1508.)  Others, 
equally  opposed  to  the  secession  of  the  slave  States,  had  professed  readiness 
to  recognize  it  as  revolution  if  the  slave  population  could  be  shown  to  have 
united  in  the  movement. 

1  Thus  Story,  Comm.  §  211,  saj's  of  the  Declaration,  "  It  vv'as  an  act  of 
original  inherent  sovereignty  by  the  people  themselves,  resulting  from  their 
right  to  change  the  form  of  government  and  to  institute  a  new  one  whenever 
necessary  for  their  safety  and  happiness."  Adding,  "  So  the  Declaration 
of  Independence  treats  it,"  which  sentence  furnishes  another  illustration  of 
putting  the  cart  before  the  horse.  {Ante,  p.  96,  n.)  The  same  idea  is  indeed  the 
basis  of  all  Story's  sophistical  misrepresentation  of  history,  which,  as  being 
such,  was  fully  exposed  by  Judge  Upshur  in  his  review  published  in  1840 ; 
though  Upshur  liimself  was  equally  in  error  by  regarding  the  States  as  each 
sovereign  independently  of  their  union. 


502  THE   QUESTION   OF   A   REVOLUTION". 

Mr.  Garfield's  View  of  Coercion. 

ognized  without  reference  to  the  ethical  or  legal  relations 
of  those  who  effected  them.  To  speak  of  "a  right  of  revo- 
lution "  as  if  it  could  be  right  existing  in  a  legal  relation, 
is  a  contradiction  in  terms  ;  and  no  ethical  justification  for 
attempting  a  revolution  can  have  anything  to  do  with  the 
question  whether  the  attempt  shall  result  in  an  unsuccess- 
ful rebellion  or  in  a  successful  revolution. 

It  was  therefore  natural  enough  that  Mr.  Garfield  in 
this  debate  should  not  adhere  very  closely  to  this  revolu- 
tionary position,  but  should  in  some  places  easily  slip  back 
to  the  lawyer's  point  of  view. 

Referring  again  to  Mr.  Long's  argument,  Mr.  Garfield 
said  :  ^  — 

"  The  gentleman  has  told  us  that  thei'e  is  no  such  thing  as  coer- 
cion justifiable  under  the  Constitution.  I  ask  him  for  a  moment  to 
reflect  that  no  statute  ever  was  enforced  without  coercion.  It  is 
the  basis  of  every  law  in  the  universe,  —  God's  law  as  well  as 
man's  law.     A  law  is  no  law  without  coercion  behind  it." 

The  speaker  proceeded  to  draw  a  parallel  between  coer- 
cion in  cases  of  ordinary  execution  under  civil  and  crim- 
inal law,  and  coercion  in  the  action  of  the  Government 
against  the  eleven  States,  as  such. 

•  But  for  his  argument  on  this  occasion,  as  against  Mr. 
Long,  Mr.  Garfield  should  have  explained  whether  the  co- 
ercion he  was  justifying  was  the  coercion  of  revolutionary 
force  or  that  of  municipal  law. 

I  have  already  cited  some  passages  from  Sir  James 
Ste])hen's  work,  to  the  effect  that  coercion  in  some  form 
•is  the  foundation  not  only  of  law  but  of  liberty.^  After 
the  sentences  last  quoted,  that  author  proceeds  to  say  :  — 

"  I  will  not  insist  further  upon  this,  but  I  would  i)oint  out  that  the 
manner  in  which  war  is  conducted  is  worthy  of  much  greater  atten- 

1  Ist  Sess.  38tli  Cong.  Globe,  1504;  ante,  p.  499. 

2  Ante,  p.  497. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  503 

Distinction  of  Coercion  in  War  and  under  Law. 

tion  than  it  has  received,  as  ilhistrating  the  character  and  limits  of 
the  struggles  of  civil  life.  The  points  to  be  noticed  are  two.  In 
the  first  place,  in  war,  defeat  after  fair  fight  inflicts  no  disgrace,  and 
the  cheerful  acceptance  of  defeat  is  in  many  cases  the  part  of  honorable 
and  high-spirited  men.  Not  many  years  ago  an  account  was  published 
of  a  great  review  held  by  the  Emperor  of  Russia.  Schamyl,  who 
had  so  long  defied  him  in  the  Caucasus,  was  said  to  have  come  for- 
ward and  declared  that  as  the  Emperor  had  had  no  more  obstinate 
enemy,  so  he  should  now  have  no  more  faithful  subject  than  him- 
self; that  he  saw  that  it  was  God's  will  that  Russia  should  rule,  and 
that  he  knew  how  to  submit  himself  to  the  will  of  God.  If  the 
story  was  true  and  the  speech  sincere,  it  was  the  speech  of  a  wise, 
good,  and  brave  man." 

No  argument  is  needed  to  show  that  the  coercion  of 
municipal  \-a,w  has  a  very  different  character  for  those  who 
are  subjected  to  it,  since  it  involves  more  or  less  of  dis- 
grace by  involving  more  or  less  the  idea  of  punish- 
ment. 

Mr.  Long  and  many  others  in  the  Northern  States,  un- 
doubtedly, as  well  as  the  people  of  the  Southern  States, 
regarded  the  action  of  the  Government  simply  as  the  coer- 
cion of  war,  —  of  war  between  two  distinct  political  per- 
sonalities, —  whether  they  thought  it  coercion  under  the 
Constitution  or  cmtside  of  it.  From  their  point  of  view  the 
question  always  was  whether  the  prospect  of  military  suc- 
cess, and  the  probable  consequences  of  such  success,  if 
attained,  rendered  the  continuation  of  the  war  expedient 
for  the  people  of  the  Northern  States. 

It  is  one  of  the  unfortunate  accidents  of  human  exist- 
ence that,  while  revolutions  must  be  expected  to  occur, 
the  coercion  which  they  involve  partakes  of  the  character 
both  of  the  coercion  of  war  and  the  coercion  of  municipal 
law.  Logically,  it  seems  absurd  that  those  who  resist 
political  change  for  being  rebellion  or  usurpation  should 
themselves  suffer  as  rebels  when  the  rebellion  or  usurpation 
results  in  a  successful  revolution.     But,  as  no  revolution 


504  THE  QUESTION   OF   A   EEVOLUTION. 

Distinction  in  the  Nature  of  Coercion. 

can  take  place  without  the  question  of  success  being  for 
some  time  in  doubt,  the  practical  consequence  is  that  the 
coercion  exercised  in  achieving  it  has  more  or  less  of  the 
character  of  punishment.^ 

Mr.  Garfield  may  at  times  have  presented  the  action  of 
the  Government,  in  reference  to  the  eleven  States  at  least, 
if  not  in  reference  to  the  people  of  the  whole  country,  as 
being  revolutionary  coercion  analogous  to  the  coercion  of 
war  ;  but  the  great  bulk  of  those  who  sustained  the  Gov- 
ernment during  the  war  may  be  assumed  to  have,  thus  far, 
regarded  that  action  as  the  enforcement  of  pre-existing 
political  authority  against  a  rebellion. 

But  the  difficulty  which  all  such  persons  experienced 
throughout  the  discussions  caused  by  the  war  was  to  pre- 
sent this  as  founded  on  a  consistent  political  basis. 

As  between  himself  and  his  opponents  on  this  particu- 
lar occasion,  Mr.  Garfield's  argument,  in  drawing  a  par- 
allel with  coercion  under  municipal  law,  was  simply 
begging  the  question,  though  neither  side  appeared  to  be 
aware  of  it.  The  first  thing  which  should  have  been  set- 
tled between  them  was  what  sort  of  coercion  was  the 
coercion  to  which  they  severally  referred. 

That  the  participants  in  this  debate  should  have  failed 
to  notice  this  in  their  mutual  recriminations  is  mainly  at- 

1  A  resolution  of  the  Virginia  Legislature  of  Dec.  17,  1782,  which  Mr. 
Garfield  recited  in  his  remarks  on  confiscation,  Jan.  28,  1804,  1st  Sess.  38th 
Cong.  Globe,  403,  shows  that  our  revolutionary  predecessors  were  quite  as 
much  embarrassed  in  reconciling  law  and  revolution.  As  given  in  the  Jour- 
nal of  the  House  of  Delegates,  the  resolution  reads  :  —  "That  the  laws  of 
this  State,  confiscating  property  held  under  the  laws  of  the  former  govern- 
ment (which  have  been  dissolved  and  made  void),  by  those  who  have  never 
been  admitted  into  the  present  social  compact,  being  founded  on  legal  prin- 
ciples, were  strongly  dictated  by  that  principle  of  common  justice,  which 
demands  that,  if  virtuous  citizens,  in  defence  of  their  natural  and  consti- 
tutional rights,  risk  their  life,  liberty,  and  property  on  their  success,  the 
vicious  citizens  who  side  with  tyranny  and  oppression  or  who  cloak  them- 
selves under  the  mask  of  neutrality,  should  at  least  hazard  their  property, 
and  not  enjoy  the  benefits  procured  by  the  labors  and  dangers  of  those  whose 
destructions  they  wished." 


THEORY  OF   OUK   NATIONAL  EXISTENCE.  505 

Importance  of  the  Distinction. 

tributable  to  their  introduction  of  this  entirely  irrelevant 
and  logically  absurd  theory  of  a  right  of  revolution. 

Any  new  possession  of  sovereignty  being  once  established 
as  fact,  it  is  equally  necessary,  as  in  the  case  of  a  conquest 
in  war,  for  everybody  to  make  the  best  of  it.  Viewed 
as  matter  of  strict  justice,  there  can  be  no  more  disgrace 
under  the  coercion  of  revolution  than  under  the  coercion 
of  war,  though  the  former  will  have  more  or  less  of  the 
character  of  punitory  law,  according  to  the  nature  of  the 
revolution  and  the  temper  of  the  times. 

If  the  result  of  the  civil  war  has  been  the  establishment 
of  a  national  government  upon  a  new  location  of  sover- 
eign power,  it  is  the  part  of  wisdom  as  well  as  of  necessity 
to  accept  the  fact  as  such,  whatever  views  one  may  have 
had  of  one's  political  duty  before  the  war.  Even  those 
who  would  resist  it  as  usurpation  may  accept  its  success 
as  indicating  that  it  has  been  the  will  of  God  or  decree  of 
Providence,  as  they  might  accept  the  result  of  an  inter- 
national conquest.  Those  who,  whether  by  revolution  or 
usurpation,  may  have  acquired  power  unknown  under  the 
former  constitution  will  have  the  political  right  to  punish 
any  who  may  resist  it.  Those  who,  while  viewing  it  as 
their  own  act  in  revolution  or  usurpation,  justify  them- 
selves to  themselves  by  attributing  the  result  to  divine  in- 
terposition — if  any  such  there  have  been  —  must  take  the 
chance,  under  the  verdict  of  history,  of  a  record  either  as 
knaves  or  as  fanatics. 

But  if  the  idea  of  a  change  in  the  location  of  supreme 
power  by  a  revolution  is  rejected,  and  if  it  is  assumed 
that  the  position  of  each  person  living  within  the  United 
States,  in  respect  to  political  allegiance,  is  the  same  now 
as  it  was  before,  it  is  of  the  essence  of  the  whole  question  to 
know  whether  the  coercion  which  Mr.  Garfield  was  de- 
fending was  the  coercion  of  war  or  that  of  municipal  law. 
If  it  was  the  former,  the  right  of  secession,  or,  rather,  the 


606  THE   QTJESTION   OF   A   REVOLUTION. 

Revolution  as  Change  of  Municipal  Law. 

State's  capacity  to  wage  war  for  that  end,  or  any  end,  is 
established  b}^  the  war  itself.^  If  it  was  the  coercion  of 
municipal  law,  the  duty  of  the  citizen  is  no  clearer  now 
than  it  was  before ;  because  nobody  has  yet  explained  how 
the  acts  of  the  Government  can  be  reconciled  with  that 
supposition. 

Very  probably  Mr.  Garfield  and  others  would  say  that 
the  revolution  they  speak  of  consists  in  the  changes  in  the 
municipal  law  itself  under  the  will  of  the  pre-existing  sov- 
ereign, —  changes  of  law  in  respect  to  social  and  economical 
relations,  without  any  change  in  the  location  of  supreme 
legislative  power.  This  may  also  be  the  prevailing  idea 
in  those  utterances  from  judicial,  legislative,  and  executive 
sources  which  have  hereinbefore  been  cited,  so  far  as  they 
recognize  some  change  in  constitutional  law  as  a  result  of 
the  war,  without  also  recognizing  a  revolution  in  the  or- 
dinary sense. 

But  it  is  absurd,  or  another  of  those  contradictions 
which  have  been  so  plentiful-  from  the  beginning  of  the 
Rebellion,^  to  refer  to  the  coercion  of  war  changes  in  mu- 
nicipal law  ;  for  these  can  be  called  revolutions,  social  and 
economical  revolutions,  only  by  a  figure  of  speech.  It  is 
a  contradiction  to  call  citizens  who  are  opposed  to  such 
changes  rebels  and  traitors,  and  still  more  to  liken  them  to 
public  enemies  vanquished  in  war. 

There  may  perhaps  be  a  certain  inability  with  some  per- 
sons to  recognize  a  revolution  in  any  other  sense  than  this, 
that  is,  that  of  a  change  of  municipal  law.  For  according  to 
the  common  theory  of  popular  sovereignty,  the  sovereignty 
of  the  nation  as  a  mass,  it  miglit  be  aigued  that  such  sov- 
ereignty exists  of  necessity,  and  that,  therefore,  there  never 
can  be  a  revolution  in  the  sense  of  a  change  in  the  loca- 
tion of  sovereignty. 

1  Compare  the  close  of  ch.  vi.,  ante,  pp.  285,  286. 

2  Compare  anle,  p.  90,  iu  the  close  of  ch.  ii. 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  507 

Mr.  Garfield's  View  of  Sovereignty. 

As  incidental  to  this  conception  of  revolutions  in  general, 
and  as  showing  the  fundamental  idea  in  the  philosophy  of 
a  certain  school,^  a  passage  may  be  recited  from  Mr.  Gar- 
field's speech  of  July  27,  1879. 

In  continuation  of  the  remarks  cited  already  on  page 
499,  Mr.  Garfield  said  :  — 

"  INIr.  Chairman,  the  dogma  of  State  sovereignty,  which  has 
reawakened  to  such  vigorous  life  in  this  chamber,  has  borne 
such  bitter  fruits  and  entailed  such  suffering  ujDon  our  people  that 
it  deserves  more  particular  notice. 

"  It  should  be  noticed  that  the  word  '  sovereignty '  cannot  be 
fitly  applied  to  any  government  in  this  country.  It  is  not  found  in 
our  Constitution.  It  is  a  feudal  word,  born  of  the  despotism  of  the 
Middle  Ages  and  was  unknown  even  in  '  Imperial  Rome.'  ^  A  sover- 
eign is  a  person,  a  prince,  who  has  subjects  that  owe  him  allegi- 
ance. There  is  no  one  paramount  sovereign  in  the  United  States. 
There  is  no  person  here  who  holds  any  title  or  authority  whatever, 
except  the  official  authority  given  him  by  law.^     Our  only  sovereign 

1  By  school,  I  do  not  mean  a  political  party.  The  people  of  this  country, 
of  all  political  factions,  have  always  hugged  to  their  bosoms  these  delusions 
as  to  the  conditions  of  their  political  existence.  It  was  for  this  reason  that 
the  opponents  of  Mr.  Garfield  in  the  House  were  unable  to  reply  effectively 
to  his  arguments  founded  on  fallacies  which  they  equally  accepted.  Among 
similar  denials  of  the  necessity  of  recognizing  a  supreme  or  sovereign  author- 
ity in  some  living  person  or  persons,  one  is  found  in  an  Address,  July  4, 1831, 
by  J.  Q.  Adams,  to  which  Story  refers  with  approval,  Comm.  §  208. 

■-  A  similar  statement  had  appeared  in  Mr.  Motley's  letter  to  the  London 
Times,  1861  (Rebellion  Record,  Vol.  I.  Documents,  p.  211),  which  is  one  of 
the  most  extravagant  assertions  of  the  theory  of  sovereignty  held  hy  the 
people  as  a  mass.  The  same  had  been  said  by  Mr.  Webster  in  his  speech  of 
Feb.  16,  1883,  in  reply  to  Mr.  Calhoun.  (Webster's  Works,  iii.  460.)  It  would 
be  singular  if  Mr.  Garfield  or  Mr.  Webster  or  Mr.  Motley  really  meant  that  the 
relation  of  sovereign  and  subject,  as  between  two  human  beings,  was  never 
known  before  the  Middle  Ages.  The  proper  distinction  is  merely  that  ter- 
ritorial sovereignty — dominion  in  relation  to  a  certain  limited  portion  of 
territory  — became  the  foundation  of  feudalism,  in  distinction  from  that  impe- 
rmm  over  natural  persons,  without  reference  to  territory  or  residence,  which 
had  been  the  ancient  basis  of  public  law,  and  which  was  continued  by  the 
theory  of  the  middle-age  German  Empire.  This  is  fully  considered  in 
Maine's  Ancient  Law,  pp.  99-104.    See  also  Bryce's  Holy  Roman  Empire,  123. 

^  As  the  speaker  on  another  occasion  [ante,  p.  502)  had  maintained  that 
coercion  must  exist  if  law  is  to  exist,   he  must  be  of  that  school  which  im- 


508  THE   QUESTION   OF  A  REVOLUTION". 

The  States  distinguished  from  Corporations. 

is  the  whole  people.  To  talk  about  the  '  inherent  sovereignty '  of 
a  corporation  is  to  talk  nonsense  ;  and  we  ought  to  reform  our 
habit  of  speech  on  that  subject." 

The  fundamental  fallacy  is  here  exhibited  in  compar- 
ing political  personalities  to  corporations  under  municipal 
law,  that  is,  to  artificial  persons,  such  as  are  made  and 
continue  to  exist  by  the  legislative  will  of  a  visible  politi- 
cal superior  who  is  not  an  artificial  person.  The  historical 
fact  is  that  the  States  were  not  "  corporations  "  in  that 
sense  ;  not  artificial  persons  made  and  continuing  to  exist 
by  the  legislative  will  of  a  political  superior,  visible  or  in- 
visible. They  came  into  being,  as  States,  by  the  transmis- 
sion of  the  imperiurii  or  sovereignty  from  the  crown  and 
Parliament  of  Great  Britain  to  them  in  union  ;  they,  sever- 
ally, consisting  of  so  many  actual  human  beings  —  the 
electors  or  voters  acting  through  agencies  called  govern- 
ments and  thereby  determining,  each  for  itself,  its  several 
existence  as  one  of  the  United  States,  sovereign  in  their 
voluntary  union.^ 

They  were  political  personalities  which  had  originated 
as  corporate  bodies  under  special  legislative  grants,  — 
charters  or  patents  —  or  permissive  sanction,  resting  on  the 
prerogative  of  a  recognized  political  sovereign,  determin- 
ing the  natural  persons  who  should  constitute  such  corpor- 
ations. In  the  Revolution  these  corporate  bodies  as  poUtical 
personalities  assumed  and  maintained  by  force,  the  force 
of  war,  the  possession  of  sovereignty,  which  in  and  b}^  that 
force  was  transmitted  to  them,  in  union,  from  its  former 
holders. 

In  the  history  of  this  fact  tlie  Declaration  of  Independence 
is  simply  a  record,  —  a  fragment  of  the  journal  of  the  Con- 

agines  laws  as  having  coercive  force  in  tliemsclves,  —  the  tlieory  of  tlie  "  sov- 
ereignty of  law." 

1  Compare  the  rejection  of  this  distinction  by  Professor  Jameson,  a«<e 
p.  127,  n. 


THEOEY   OF   OTJE   NATIOl^AL   EXISTENCE.  509 

Value  of  the  Declaration  of  Independence. 

gress  composed  of  the  delegates  of  the  United  Colonies  at 
that  moment,  the  whole  being  part  of  a  much  more  ex- 
panded historical  record.  To  attribute  to  it  a  legislative 
force,  determining  the  political  value  of  the  facts  which  it 
records,  is  absurd. ^  Its  distinctive  importance  in  the 
whole  record  is  in  the  fact  that  it  has  been  accepted  by  all 
the  world  as  marking  an  instant  of  time,  —  an  instant  for 
the  transmission  of  pre-existing  sovereignty  from  one  holder 
to  another. 

The  battles  of  the  Revolution,  making  possible  the  estab- 
lishment of  diplomatic  relations  between  an  earlier  holder 
of  sovereignty  in  and  for  the  colonies  and  a  new  holder  of 
the  same  sovereignty  in  and  for  the  States  united,  were 
the  essential  facts  Avhich  gave  all  the  distinctive  importance 
to  this  record.  What  gave  meaning  to  the  Declaration  was 
not  any  motive,  principle  or  theory,  expressed  or  not,  but 
a  purpose,  —  the  purpose  to  take  independent  political 
power  by  force,  by  right  above  law,  because  by  force  above 
law.  What  gave  it  importance  was  the  fact  that  this  pur- 
pose was  sustained  by  force  which  proved  adequate  to  the 
occasion. 

The  question  for  all  the  world  at  that  moment  was, 
Who  is  the  political  personality  (or,  who  are  the  political 
personalities)  capable  of  holding  sovereignty  as  a  unit,  that 
is,  independent  political  power  sustained  by  force,  —  who 
has  (or  who  have)  thus  expressed  this  purpose  and  actu- 
ally maintained  it  ? 

This  Declaration  and  every  other  part  of  the  historical 

1  To  the  disciples  of  this  school,  the  Declaration  becomes  another  fetish  ; 
more  powerful,  as  such,  than  the  Constitution  itself.  In  connection  with 
some  sentences  already  cited  from  Cooley's  Constitutional  Limitations  (ante, 
p.  125,  n.),  the  author  says,  "The  Declaration  of  Independence  made  them 
sovereign  and  independent  States  by  altogether  abolishing  the  foreign  juris- 
diction and  substituting  a  national  government  of  their  own  creation."  See 
also  R.  Frothingham's  Rise  of  the  Republic,  ch.  xi.,  where  the  document  is 
spoken  of  as  if  it  worked  of  itself.  Taine  has  said  somewhere,  "  Under 
the  shell  there  was  an  animal,  and  behind  the  document  there  was  a  man." 


510  THE   QUESTION   OP   A   REVOLUTION. 

Revolution  —  the  Act  of  the  Colonies. 

record  indicate  that  the  colonies,  as  thirteen  distinct 
political  personalities  in  union,  said,  at  this  time,  that  they 
could,  in  union,  become  free  and  independent,  and  that 
they  meant  to  be  free  and  independent  States  in  union  ; 
and,  as  soon  as  the  former  possessor  of  sovereignty  in  and 
for  these  colonies,  after  sufficient  trial  or  test,  recognized 
that  this  was  a  fact  and  not  merely  a  purpose,  there  was 
an  end  of  the  matter,  as  far  as  that  former  possessor 
of  sovereignty  in  and  for  those  colonies  was  concerned. 

And  this  being  the  fact  of  the  matter,  as  far  as  we  too 
are  concerned,  it  is  no  matter  to  us  what  "  the  people  " 
or  "  the  nation,"  in  the  sense  of  all  the  inhabitants  of  all 
the  colonies  taken  as  a  mass,  thought  on  the  subject.  We 
know  perfectly  well  that,  taken  as  such  mass,  they  did  not 
do  anything  about  it.^  It  is  a  fact,  about  which  nobody 
has  ever  disputed  in  the  least,  that  nobody,  individually  as  a 
human  being,  had  at  that  time,  or  ever  since  has  had,  the  op- 
tion to  say  whether  he  or  she  would  or  would  not  recognize 
this  as  the  fact  of  the  matter.  Nobody  individually  has 
had  the  option  to  like  it  or  not  to  like  it.  Or,  the  only 
option  has  been  to  like  it,  and  stay,  or  not  to  like  it,  and 
quit.  To  recall  this  to  our  minds,  the  allusions  to  "  the 
Loyalists  "  and  "  the  Tories,"  in  Mr.  Garfield's  speech  of 
Aug.  4,  1876,  are  sufficient.^ 

It  is  a  fact,  about  which  nobody  disputes,  that  society 
and  government  were  never,  for  an  instant,  broken  up  or 
discontinued.  It  is  as  certain  as  anything  in  history  can 
be  that  nobody,  for  an  instant,  was  released  from  political 
and  civil  subjection  to  political  and  civil  supremacy,  or  was 
for  a  moment  in  a  situation  to  act  like  an  independent 
sovereign,  or  do  as  he  or  she  pleased  without  regard  to 
any  political  authority.     The  laws  which  had  rested  on 

1  Ante,  p.  112. 

2  How  Mr.  Garfield  would  apply  in  such  cases  the  doctrine  of  a  right  of 
private  judgment  in  matters  political,  or,  indeed,  on  what  authority'  he  at- 
tributed that  doctrine  to  Luther  [ante,  p.  467),  he  has  not  shown. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  511 

Colonies  passing  into  States  united. 

the  authority  of  the  colonies,  maintained  by  their  polit- 
ical relation  to  the  crown  and  parliament  of  Great  Britain, 
continued  to  rest  on  the  authority  of  the  States,  main- 
tained by  their  mutual  political  relation  (as  corporations, 
if  anybody  chooses  to  call  them  such)  in  their  voluntary 
union,  together  possessing  sovereignty  as  a  unit.  It  is  as 
certain  as  anything  can  be  certain  from  history  that  the 
people  or  nation,  as  a  mass,  did  not  do  anything  to  make 
this  state  of  things  or  to  unmake  it.^  Each  State,  being 
in  union  with  the  others,  determined  its  own  corporate 
existence,  determined  the  natural  persons  who,  having  been 
the  constituent  members  of  the  colony,  should  continue 
as  the  electors  or  voters  of  the  State  in  its  use  or  exer- 
cise of  the  power  of  sovereignty  in  union  with  the  other 
States. 

It  is  certain  that  nobody  participated  in  political  life  as 
a  voter  for  representative  government  except  as  his  capa- 
city was  derived  from  the  will  of  the  pre-existing  and  con- 
tinuing corporate  body  called  "  colony  "  and  afterwards 
"  State." 

There  was,  therefore,  nobody  in  existence  who  actually 

1  As  these  pages  are  written  Mr.  Jefferson  Davis's  "  Eise  and  Fall  of  the 
Confederate  Government"  appears  (June,  1881),  which  I  here  notice  as  con- 
taining an  exposition  of  the  historical  weakness  of  the  theory  of  sovereignty 
in  the  people  as  a  mass,  as  it  had  been  presented  by  Story,  Webster,  Ever- 
ett, Motley,  and  others.  (See  Part  II.,  The  Constitution,  Chapters  IV.-IX.) 
But  yet  Mr.  Davis,  like  all  of  the  school  he  opposes,  repeatedly  asserts  the  in- 
herent sovereignty  of  the  individual,  that  governments  rest  on  the  consent  of 
the  governed,  using  government  in  the  same  ambiguous  way  (Vol.  I.  p.  299, 
452),  and  the  possession  of  sovereignty  by  aggregate  masses  of  people  (Vol. 
I.  pp.  142,  154,  155),  as  political  axioms.  One  of  his  most  deliberate  propo- 
sitions, however,  is  (Vol.  I.  p.  157):  "That  political  sovereignty  resides 
neither  in  individual  citizens  nor  in  unorganized  masses,  nor  in  fractional 
subdivisions  of  a  community,  but  in  the  people  of  an  organized  political 
body."  Another  work  which  appears  simultaneously,  and  which  contains  a 
still  more  elaborate  refutation  of  the  historical  basis  for  the  so-called  "  Na- 
tional" theory,  and  which  is  characterized  by  the  same  mistaken  notions 
about  sovereignty,  etc.,  is  "  The  Republic  of  Republics  ;  or,  American  Federal 
Liberty,"  by  P.  C.  Centz  [pseudonym].  Barrister.    Fourth  edition. 


512  THE   QUESTION   OF  A  KEVOLUTION. 

Oaths  to  support  the  Constitution. 

held  and  exercised  political  power  by  riglit  above  law  but 
these  corporate  bodies,  and,  therefore,  nobody  who  did  or 
could  give  or  make  State  and  national  constitutions,  but 
these  States.^ 

Outside  observers  might  think  that  the  fact  of  the  seces- 
sion war  had  proved  sufficiently  that  our  written  Constitu- 
tion cannot  of  itself  determine  for  the  individual  citizen  who 
those  shall  be  who  will  protect  his  life  and  property,  and 
who  can  also  compel  his  obedience  for  protecting  the  lives 
and  property  of  others. 

It  will  be  said,  however,  by  those  who  would  make 
deities  out  of  constitutions,  that  the  possibility  of  perjury 
and  falsehood  must  be  necessarily  recognized  ;  that  if 
everj^body  would  "  continue  to  execute  all  the  express 
provisions  of  our  national  constitution,  the  Union  would 
endure  forever,  it  being  impossible  to  destro}^  it,  except  by 
some  action  not  provided  for  in  the  instrument  itself."  ^ 

But  there  is  something  else,  lying  behind  the  Constitu- 
tion, which  has  to  be  settled  before  any  conclusion  as  to 
perjury  in  breaking  one's  oath  to  support  it,  or  as  to  crime 
in  not  obeying  it  as  law  can  be  reached. 

To  show  this  I  do  not  propose  to  appeal  to  the  argu- 
ments of  any  secessionists  or  of  any  Southern  statesmen. 

On  more  than  one  occasion  during  his  distinguished 
career  in  Congress  the  present  occupant  of  the  presidential 
chair  has  given  a  view  of  this  matter  which,  if  accepted  in 
liis  justification,  must  be  equally  serviceable  for  every 
other  American  citizen. 

In  the  course  of  debate  on  the  confiscation  legislation, 

1  Compare  on  tliese  facts,  ante,  oh.  iv.  Those  who  attribute  to  "  ideas  " 
the  force  of  law  derived  from  a  political  sovereign  (compare  ante,  p.  456), 
would  i)robal)ly  claim  the  Gorman  author.  Herder,  as  a  leader,  but  even  he 
said :  "  The  historian  will  never  attempt  to  explain  a  thing  wliich  is  by  a 
thing  wliich  is  not.  And  with  this  severe  principle  all  ideals,  all  phantasmas 
of  a  dream-world  disappear."  K.  Ilillebrand's  Lectures  on  German  Thought, 
p.  132. 

2  See  Mr.  Lincoln's  language  in  his  Inaugural,  ante,  p.  144,  n. 


THEORY    OF   OUR    NATIONAL   EXISTENCE.  513 

Mr.  Garfield's  and  Mr.  Lincoln's  Position. 

arising  at  the  first  session  of  the  Thirty-eighth  Congress,^ 
Mr.  S.  S.  Cox,  also  a  representative  from  Ohio,  had  asked 
whether  "  he  [Mr.  Garfield]  would,  to  aggravate  the  pun- 
ishment of  the  traitor  or  to  punish  the  innocent  children 
of  the  rebels,  break  the  Constitution  ?  " 
Mr.  Garfield  replied,  — 

"  I  would  not  break  the  Constitution  for  any  such  purpose.  .  .  . 
I  would  not  break  the  Constitution  at  all,  unless  it  should  become 
necessary  to  overleap  its  barriers  to  save  the  Government  and  the 
Union." 

In  the  course  of  a  debate  which  arose  a  few  months 
later,  and  which  will  be  noticed  again  hereafter,^  these 
remarks  were  recalled  to  Mr.  Garfield's  notice,  and  on  that 
occasion  he  repeated  the  statement  of  his  position. 

But,  as  being  similar  as  an  illustration  of  the  point  taken, 
I  next  refer  to  a  well  known  paper  written  in  the  interval ; 
one.  which  has  for  many  persons,  probably,  an  authority 
greater  than  they  would  accord  to  anytliing  written  by 
anybody  now  living. 

In  the  letter  to  Colonel  Hodges,  already  mentioned, 
dated  Washington,  April  4,  1864,  Mr.  Lincoln  wrote  :  — 

1  Jan.  14,  1864,  1st  Sess.  38th  Cong.  Globe,  213  ;  in  a  debate  on  a  joint 
resolution  explanatory  of  an  "  Act  to  suppress  insurrection,  punish  treason 
and  rebellion,  to  seize  and  confiscate  the  property  of  rebels,  and  for  other 
purposes."  See  ante,  pp.  59,  170.  Speaking  on  the  same  matter,  Jan.  28, 
1864  (Globe,  403),  Mr.  Garfield  said  that  he  could  not  agree  either  with 
the  theory  which  "acknowledges  that  these  States  are  out  of  the  Union 
[which  he  attributed  to  Mr.  Thaddeus  Stevens],  nor,  on  the  other  hand, 
agree  with  those  who  believe  that  the  insurgent  States  are  not  only  in  the 
Union,  but  have  lost  none  of  their  rights  under  the  Constitution  and  laws  of 
the  Union."  Mr.  Garfield,  with  the  majority  of  his  fellow-statesmen,  must 
however  have  sustained  this  legislation  on  a  combination  of  two  incompat- 
ible positions,  one  resting  on  the  theory  of  an  international  war,  and  the 
other  on  the  theory  of  municipal  law  against  rebellion.  Comp.  ante,  pp. 
170-179.  On  the  same  occasion,  when  discovering  a  precedent  for  this  legis- 
lation in  the  several  action  of  the  States  at  the  close  of  the  Revolution,  con- 
fiscating the  property  of  the  adherents  to  the  crown,  Mr.  Garfield  attributed 
it  to  the  exercise  of  a  war  power.  For  this  position  he  cited  the  authority 
of  Jefferson,  when  Secretary  of  State  in  1792.     Globe,  404. 

2  See  post,  p.  515. 


514  THE   QUESTION    OF    A   EEVOLUTION. 

Mr.  Lincoln's  Letter  to  Colonel  Hodges. 

"  You  ask  me  to  put  in  writing  the  substance  of  what  I  verbally 
said  the  other  day  in  your  presence  to  Governor  Bramlette  and 
Senator  Dixon.  It  was  about  as  follows :  '  I  am  naturally  anti- 
slavery.  If  slavery  is  not  wrong,  nothing  is  wrong.  I  cannot  re- 
member when  I  did  not  so  think  and  feel,  and  yet  I  have  never 
understood  that  the  Presidency  conferred  upon  me  an  unrestricted 
right  to  act  officially  upon  this  judgment  and  feeling.  It  was  in  the 
oath  I  took  that  I  would  to  the  best  of  my  ability  preserve,  protect, 
and  defend  the  Constitution  of  the  United  States.  I  could  not 
take  the  office  without  taking  the  oath.  Nor  was  it  in  my  view 
that  I  might  take  the  oath  to  get  power,  and  break  the  oath  in 
using  the  power.  I  understand,  too,  that  in  ordinary  and  civil  ad- 
ministration this  oath  even  forbids  me  to  practically  indulge  my 
primary  abstract  judgment  on  the  moral  question  of  slavery.  I  had 
publicly  declared  this  at  many  times  and  in  many  ways.  And  I 
aver  that,  to  this  day,  I  have  done  no  official  act  in  mere  deference 
to  my  abstract  judgment  and  feeling  on  slavery.  I  did  understand, 
however,  that  my  oath  to  preserve  the  Constitution  to  the  best  of 
my  ability  imposed  upon  me  the  duty  of  preserving,  by  every  in- 
dispensable means,  that  Government  —  that  nation  —  of  which  the 
Constitution  was  the  organic  law.  Was  it  possible  to  lose  the 
nation,  and  yet  preserve  the  Constitution  ?  By  general  law,  life 
and  limb  must  be  protected ;  yet  often  a  limb  must  be  amputated 
to  save  a  life  ;  but  a  life  is  never  wisely  given  to  save  a  limb.  I 
felt  that  measures,  otherwise  unconstitutional,  might  become  lawful 
by  becoming  indispensable  to  the  preservation  of  the  Constitution 
through  the  preservation  of  the  nation.  Right  or  wrong,  I  assumed 
this  ground  ;  and  now  avow  it.  I  could  not  feel  that  to  the  best  of 
my  ability  I  had  even  tried  to  preserve  the  Constitution,  if  to  save 
slavery,  or  any  minor  matter,  I  should  permit  the  wreck  of  govern- 
ment, country,  and  Constitution  all  together.  ...  I  add  a  word 
which  was  not  in  the  verbal  conversation."  -^ 

1  The  remainder  of  this  letter  lias  already  been  quoted,  ante,  p.  470. 
If  Mr.  Lincoln  was  riglit  in  calling  the  secession  ordinances  nullities,  and  void, 
as  acts,  because  there  was  nothing  in  the  Constitution  to  authorize  them 
{ante,  p.  144,  n.),  this  letter  is  an  argument  for  the  nullity  of  his  own  edict. 
Such  claims  as  this  of  Mr.  Lincoln  are  one  of  the  marks  of  civil  war  in  repub- 
lican states.  While  the  issue  was  still  pending  between  the  second  trium- 
virate and  tlie  party  of  Brutus  and  Cassius,  Cicero  wrote  to  Brutus,  "  By 
what  right,  by  what  law,  shall  Cassius  go  to  Syria  [as  proconsul]  1     By  that 


THEORY   OF   OUE,   NATIONAL   EXISTENCE.  515 

Mr.  Garfield  on  breaking  the  Constitution. 

In  the  course  of  the  debate  already  noticed,  on  the 
motion  for  the  expulsion  of  Mr.  Long,  that  gentleman 
had  alluded  to  the  remarks  of  Mr.  Garfield  on  the  14th  of 
January,  as  above  cited.     Mr.  Garfield  said  in  reply  :  — 

"  I  said  what  I  did  say  upon  that  occasion  with  great  circum- 
spection and  care,  and  all  I  ask  is  that  the  gentleman  will  fairly 
quote  me,  as  I  presume  he  intended  to  do.  In  reply  to  the  gentleman 
from  the  central  district  of  Ohio  [Mr.  S.  S.  Cox],  who  is  not  now 
in  his  seat,  when  he  asked  me  if  I  would  break  the  Constitution,  I 
answered  that  I  would  not  break  the  Constitution  at  all,  unless  it 
should  become  necessary  to  overleap  its  barriers  to  save  the  Union. 
I  did  not  say  then,  as  I  do  say  now,  that  on  such  an  occasion  I 
would  overleap  the  barriers  of  the  Constitution,  but  I  would  leap 
into  the  arms  of  a  willing  people  wh.o  made  the  Constitution." 

On  the  same  occasion,  immediately  after  the  remarks 
already  cited,  as  to  a  right  of  revolution  and  his  determined 
purpose  to  resist  it  by  force  (^ante,  p.  499),  Mr.  Garfield 
said :  — 

"  What  is  the  Constitution  that  these  gentlemen  are  perpet- 
ually flinging  in  our  faces  whenever  we  desire  to  strike  hard  blows 
against  the  Rebellion  ?  It  is  the  product  of  the  American  people. 
They  made  it,  and  the  creator  is  mightier  than  the  creature. 
The  power  which  made  the  Constitution  can  also  make  other  instru- 
ments to  do  its  great  work  in  the  day  of  its  dire  necessity." 

The  question  being  asked  by  another  member  whether 
he  had  not,  in  the  same  remarks,  alluded  to  his  having, 
together  with  the  other  representatives  from  the  State  of 
Ohio,  taken  at  the  Speaker's  desk  the  oath  to  support  the 
Constitution,  Mr.  Garfield  answered  :  — 

"  I  did  ;  and  I  am  very  happy  the  gentleman  has  reminded  me 
of  it  at  this  time  ;  and  I  remember  in  the  very  preamble  of  that 
Constitution  it  is  declared  to  be  ordained  and  established  for  the 
pui'pose  of  promoting  the  general  welfare  and  providing  for  the  com- 
mon defence ;  and  on  that  very  ground,  based  on  that  very  state- 
law  which  Jupiter  sanctioned  when  he  ordained  that  all  things  good  for  tho 
Republic  should  be  just  and  legal."    TroUope's  Life  of  Cicero,  II.  218. 


516  THE   QUESTION   OF   A   REVOLUTION. 

Nature  of  Fetish  Worship. 

ment  of  its  declared  oI)ject,  I  not  only  lifted  up  my  hand  to  swear 
to  support  the  Constitution  before  God,  but  it  makes  me  now  sorry 
there  had  not  been  a  sword  in  it  when  I  lifted  it  up,  to  strike  down 
any  and  all  who  would  oppose  the  use  of  all  the  means  God  has 
placed  in  our  power  for  overthrowing  the  Rebellion  forever."  ^ 

In  reply  to  a  question  from  Mr.  S.  S.  Cox,  also  a  repre- 
sentative from  Ohio,  Mr.  Garfield  said  during  the  same 
debate:  ^  — 

"  What  I  have  uttered  is  this  :  When  asked  if  I  would  under 
any  circumstances  override  the  Constitution,  I  said  this  and  this 
only,  —  premising,  as  I  believed,  that  the  Constitution  was  ample 
enough  of  itself  to  put  down  this  Rebellion,  that  its  powers  were 
most  capacious,  and  that  there  was  no  need  to  override  it,  —  that 
if  such  a  time  ever  should  come  that  the  powers  of  the  Consti- 
tution were  not  sufficient  to  sustain  the  Union,  if  that  imjjossible 
supposition  should  ever  prove  true  [laughter  from  the  Democratic 
side  of  the  House'],  then  I  would  say  that  we  have  a  right  to  do  our 
solemn  duty  under  God  to  go  beyond  the  Constitution  to  save  the 
authors  of  the  Constitution."^ 

Some  will  say,  probabl}^  that  such  declarations  show  at 
least  that  tliere  must  be  some  very  material  limitation  to 
that  veneration  for  the  Constitution  which  outside  obser- 
vers have  supposed  to  be  so  universal  in  our  minds.*  More 
critically  considered,  however,  such  language  may  rather 
be  taken  as  betrajdng  one  of  those  phases  which  all  fetish 
worship  exliibits.  While  all  goes  well  with  the  devotee 
he  exalts  his  idol  with  song  and  sacrifice,  and  boasts  its 
omnipotence  as  he  invokes  its  terrors  against  rivals  and 
enemies  crouching  about  some  other  jungle-shrine.  But 
if  fortune  is  adverse,  and  his  lusts  fail  of  gratification,  the 
idolator  begins  sulking  before  the  senseless  block,  refuses 

^  Could  Mr.  Garfiehl  possibly  mean  that  he  would  have  felt  justified  in 
taking,  on  his  individual  judgment  and  respousibility,  the  life  of  any  or  all 
who  would  oppose  him  in  any  assumption  of  power  he  might  think  proper 
for  this  purpose  '^ 

'■J  1st  Sess.  38th  Cong.  Globe,  1505. 

^  On  the  same  question  compare  aide,  pp.  316,  347,  and  the  notes. 

<  Ante,  p.  93. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  517 

Nature  of  written  Constitutions. 

incense  and  homage,  rails  at  its  obstinacy,  and,  as  things 
grow  worse,  strips  it  of  its  ornaments,  and  even  gives 
Mumbo-jumbo  a  douse  in  the  horse-pond.  The  fetish,  how- 
ever, is  none  the  worse  for  this  usage.  When  the  day  of  ad- 
versity is  passed,  the  deity  becomes  respectable  again  to  the 
enslaved  imagination  of  the  votary ;  and  when  he  has  seen 
his  desire  satisfied  on  his  enemies,  he  brushes  up  his  soiled 
faith,  renews  his  broken  vows,  and  sets  his  god  up  again, 
with  fresh  paint  and  brighter  feathers,  —  a  somewhat 
changed  but  no  less  powerful  divinity,  to  answer  the  needs 
of  the  superstition  that  gave  it  being. 

All  citizens  must  be  alike  in  respect  to  the  obligation  to 
obey  the  Constitution,  whether  they  may  have  taken  an 
oath  to  that  effect  on  assuming  the  responsibilities  of  an 
office,  or  not.  The  question  might  be  asked,  how  any  mem- 
ber of  the  general  Government,  or  any  other  citizen,  is  to 
know  that  those  from  whose  will  the  Constitution  derives 
its  authority  did  not  intend  that  their  will  should  be  main- 
tained only  in  the  way  therein  indicated.  This,  indeed,  has 
always  been  assumed  as  the  great  end,  purpose,  and  ad- 
vantage of  written  constitutions,  —  that  they  limit  even  the 
ultimate  sovereign.  Whether  this  is  not  the  fundamental 
fallacy  and  weakness  of  all  constitutional  governments  is  a 
question  which  need  not  be  here  examined.  That  Mr. 
Garfield  on  this  occasion  saw  this  obvious  objection  to  his 
position  appears  from  his  evading  it  by  assuming  that,  in 
indicating  the  general  welfare  and  the  common  defence  as 
the  ultimate  objects  of  its  provisions,  those  from  whose 
political  existence  the  Constitution  derived  its  authority 
had  entrusted  to  him  the  care  of  that  existence,  indepen- 
dently of  any  written  Constitution  whatever. 

Considering  that  for  several  generations  the  people  of 
this  country  having  been  trying  to  persuade  themselves 
that  the  written  Constitution  of  the  United  States  must  be 
all-powerful  for   the  conservation   of  everything  else,  it 


518  THE   QUESTION   OF   A   EEVOLUTIOX. 

Position  of  the  Citizen  to  tiie  Constitution. 

would  not  be  strange  if  some  who  read  these  candid  state- 
ments find  it  difficult  to  understand  why  this  Constitution 
cannot  be  trusted  to  take  care  of  itself  as  well.  ^ 

But  Mr.  Lincoln  and  Mr.  Garfield  were  correct  in  this 
at  least,  if  they  meant  to  say  that  there  is  no  constitution 
to  be  faithful  to,  at  au}^  time,  unless  there  is  somebody  in 
existence  at  the  same  time  to  whom  its  authority  can  be 
ascribed  ;  and  their  argument,  if  it  may  be  called  such, 
may  be  construed  as  being  that  they  regarded  their  oaths 
to  support  the  Constitution,  as  law,  equivalent  to  oaths  of 
allegiance  to  some  sovereign  existing  independently  of  the 
Constitution. 

This  being  recognized  as  the  true  view,  it  remained  to 
determine  who  the  person  or  persons  were  to  whom  al- 
legiance was  due ;  which  is  no  other  question  than  the 
question.  Who  are  the  person  or  persons  from  whose  will 
the  written  Constitution  is  law  for  anybody? 

The  question  turns  uj)on  the  existence  of  a  fact  neces- 
sarily preceding  the  Constitution  in  the  order  of  cause  and 
effect.  Here,  therefore,  no  courts,  no  learned  jurists,  no 
arguments  from  the  lawyer's  point  of  view,  can  decide  the 
duty  of  the  individual  citizen.  It  is  a  question  of  fact,  to 
be  determined  for  himself  by  the  intellect,  conscience,  and 
bodily  senses  of  each  natural  person  on  the  testimony  given 
in  history,  continuing  to  the  moment  of  the  question.  And 
responsibility  for  the  answer  will  rest  on  each  such  person 
individually.'-^ 

^  The  difficulty  in  the  case  is  that  it  can  do  so  only  "  as  far  as  its  nature 
will  permit,"  to  use  Marshall's  words,  nnle,,  p.  430. 

2  Paper  No.  83  of  the  Loyal  Publication  Society  [1805]  was  one  by  Dr. 
Lieber,  proposing  certain  amendments  to  the  Constitution,  the  first  of  which 
was  to  read  :  "  Every  native  of  this  country,  except  tlie  sons  of  aliens  whom 
the  law  may  exempt,  and  Indians  not  taxed,  and  every  naturalized  citizen, 
owes  plenary  allegiance  to  tlie  government  of  the  United  States,  and  is  en- 
titled to,  and  shall  receive,  its  full  protection  at  iiome  and  abroad."  Lieber's 
Misccll.  II.  p.  177.  If  adopted  in  the  ordinary  manner  of  an  amendment, 
this  provision  could  not  have  had  the  proposed  effect.    For,  if  law,  like  tho 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  519 

Position  of  an  Officer  of  the  Government. 

Mr.  Lincoln  and  Mr.  Garfield,  the  one  being  the  Presi- 
dent, and^he  other  a  member  of  the  legislature,  each  meas- 
ured his  capacity  as  an  officer  of  a  government  established 
under  a  written  Constitution  b}^  his  own  unsupported  de- 
cision of  this  question,  as  presented  to  each  citizen  of  the 
United  States.  In  the  position  which  they  took  at  this 
crisis,  the  Constitution  could  be  no  guide  to  their  duty 
as  members  of  the  Government.  It  could  merely  be  to 
them,  as  to  any  other  citizen,  part  of  the  evidence  leading 
their  minds  to  a  knowledge  of  those  who  were  the  creators 
of  the  Constitution. 

It  is  plain,  therefore,  that  a  member  of  the  Government 
who  takes  such  a  position  must  take  it  in  view  of  his  indi- 
vidual dut}',  as  a  citizen,  towards  some  political  superior. 
But  it  is  equally  clear  that  everybody  else  is  in  the  same  situ- 
ation in  regard  to  this  question,  — whether  to  observe  the 
Constitution  or  not  to  observe  it,  —  and  must  likewise  rest 
his  political  obligation  on  his  own  unsupported  knowledge 
of  the  fact  which  is  the  cause  of  the  Constitution  as  effect,^ 
It  must,  in  the  last  resort,  be  a  question  of  conscience  for 
.  each  person  obliged  to  recognize  a  sovereign,  somewhere, 
before  he  can  recognize  a  constitution  as  law. 

It  will  be  seen,  then,  that,  logically.  President  Lincoln 
and  Mr.  Garfield  were  in  no  better  position  on  this  point 
than  any  States-right  theorist  or  practical  secessionist. 
This  was  precisely  the  position  taken  by  the  citizens  of 
the  eleven  States  of  the  Confederacy.     They  also  recog- 

rest  of  the  Constitution,  the  provision  itself  must  be  referred  to  the  continuing 
will  of  somebody,  and,  whoever  that  was,  to  him  or  them  the  allegiance  would 
be  due.  This  proposition  was  an  illustration  of  Dr.  Lieber's  theories  about 
the  source  of  law  or  of  the  relation  of  law  to  "  sovereignty,"  a  term  wliich  in 
conversation  lie  often  said  "  we  must  get  rid  of." 

1  The  difference  in  the  positions  of  the  member  of  a  government  and  the 
private  citizen  is  in  the  opportunity^  which  the  former  may  have  "  to  force 
the  hand  "  of  those  who  iiave  entrusted  him  with  constitutional  power.  It 
was  from  this  opportunity  that  Mr.  Lincoln's  Emancipation  Proclamation  had 
its  so-called  validity. 


520  THE   QCESTIOX   OF   A   REVOLUTION. 

By  Whom  the  Fact  is  settled. 

nized  the  existence  of  the  authors  or  creators  of  the  Con- 
stitution as  superior  to  the  existence  of  the  Constitution 
as  law.  But  the  testimony  given  by  history,  as  it  was 
apprehended  by  their  intellects,  consciences,  and  bodily 
senses,  told  them  that  the  Constitution  derived  its  author- 
ity at  that  time  from  the  will  of  States  severally  and  indi- 
vidually sovereign. 

When  the  issue  is  presented  in  this  form,  all  that  those 
who  would  support  the  general  Government,  on  Mr.  Lin- 
coln's and  Mr.  Garfield's  theory  of  political  duty,  can  say 
is,  that  they  intend  to  act  as  though  any  who  differ  from 
them  as  to  the  facts  were  mistaken  as  to  the  facts. 

If  they  succeed  in  that  course  of  action,  that  settles  the 
question  of  fact  for  themselves  and  for  everybody  else. 
For  the  question  is  one  which  is  never  settled  as  matter 
of  prevailing  opinion  only  ;  that  is,  not  by  the  mere  opinion 
of  even  the  greatest  number. 

The  citizen  must  be  individually  responsible  for  his  own 
decision  as  to  his  political  duty  ;  but  an  opinion  on  the 
question  of  fact,  whether  held  by  one  or  by  many,  counts 
for  nothing,  as  far  as  one's  self  or  others  are  concerned, 
except  as  it  is  supported  by  some  actual  or  prospective 
exertion  of  force. 

Those  who  claim  the  capacity  to  determine,  for  them- 
selves and  for  everybody  else,  the  personality  by  whose 
will  the  Constitution  became  and  continues  to  be  law  must, 
in  reality,  claim  to  be  themselves  that  personality,  or  to  be 
themselves  the  makers  of  the  Constitution.  To  decide, 
for  others,  who  is  their  political  superior  is  to  be  that  po- 
litical superior.  Anybody,  who  likes  to  try,  may  take  this 
position  ;  but  to  make  it  of  the  slightest  importance  to 
anybody  else,  he  or  they  who  take  it  must  be  able  and 
ready  to  maintain  that  view  of  the  facts  by  main  strength. 
In  jioint  of  fact,  those  who  have  actually  done  this,  that  is, 
who  have  taken  this  position  and  maintained  it  by  force 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  521 

The  "Weakness  of  a  certain  School. 

from  the  first  clay  of  national  independence  to  the  present 
moment,  have  been  the  political  peoples  of  the  States  which 
have  continued  in  a  voluntary  union.  And  this  is  the 
evidence,  and  the  only  evidence  possible,  that  they,  the 
States  in  union,  are  those  from  whom  the  Constitution  de- 
rives its  authority. 

Instead  of  recognizing  some  actual  person  or  persons  as 
actually  holding  sovereign  power,  Mr.  Lincoln  and  Mr. 
Garfield  in  these  instances,  as  all  of  that  school  which 
attributes  sovereignty  to  the  nation  as  a  mass  have  done, 
placed  their  own  private  standard  of  right  and  wrong,  of 
public  and  private  advantage  or  disadvantage,  in  the  place 
of  the  will  of  a  sovereign.  This  was  indeed  the  charac- 
teristic method  of  Story,  Lieber,  and  many  others  who 
have  had  a  leading  part  in  educating  their  generation  in 
political  life.^ 

But  in  this  respect,  these  American  publicists  are  not 
distinguished  from  many  others  who  in  other  countries 
have  lived  contemporaneously.  They  were,  in  many  re- 
spects, in  harmony  with  a  class  of  political  reformers  in 
Europe,  who  are  contending  against  what  they  call  "  prop- 
erty in  power,"  whether  held  by  a  few  or  by  many,  and 
who  are  trying  to  convince  the  world  of  the  possibility  of 
"  the  sovereignty  of  law,"  ^  of  the  possibility  of  societies 
governed  by  justice,  without  recognizing  anybody  who 
shall  determine  what  is  just:   though   all   of  this  school 

1  In  a  notice  of  Dr.  Lieber's  Miscellanies,  in  the  Nation,  March  27,  1881, 
it  was  remarked :  "  Dr.  Lieber  never  seems  to  have  fully  comprehended 
the  distinction,  now  so  fully  recognized  by  all  English  publicists,  between 
the  domain  of  law,  embracing  the  legal  conception  of  rights,  duties,  and  the 
attendant  sanctions,  and  that  of  etliics.  Tiiis  fault,  so  noticeable  now, 
wholly  escaped  the  observation  of  liis  own  generation,  because  it  was  shared 
by  almost  all  the  leading  writers  of  the  day.  Kent,  Story,  and  all  their  con- 
temporaries had  very  antique  and  confused  conceptions  as  to  tlie  relation 
between  law  and  morals."  Compare,  on  the  other  hand,  authors  such  as 
Austin,  Maine,  Bagehot,  and  Stephen. 

2  Ante,  p.  96. 


522  THE   QUESTION   OF   A   REVOLUTION. 

A  Question  of  Political  Expediency. 

propose  that  everything  they  may  personally  consider  right 
shall  be  taken  for  justice. 

It  seems  to  be  assumed,  at  the  present  time,  by  many, 
that  all  j^olitical  and  social  evils  would  necessarily  be  less 
if  the  power  to  remedy  them  were  entrusted  to  a  general, 
central,  or  national  government,  —  employing  the  States,  if 
allowed  to  subsist,  as  agencies  perhaps  —  than  if  the  requi- 
site power  should  be  continued,  as  far  as  it  has  been  "  re- 
served," in  the  hands  of  the  States.  The  doctrine  may  be 
true  enough,  as  political  philosophy ;  ^  but,  even  if  it  is, 
the  question  whether  the  power  is  so  located  is  not  deter- 
mined by  such  a  principle,  and  nobody  has  a  right  to  act 
as  if  it  were  so  determined.  It  is  certain  that  no  such 
principle  was  accepted  by  our  predecessors  of  a  century 
ago.  Whatever  the  actual  seat  of  sovereignty,  as  a  unit, 
may  have  been,  it  is  certain  that  all  the  public  law  pro- 
ceeding from  that  sovereignty  has  been  founded  on  the 
expediency  of  distributed  powers.^ 

There  is  no  necessity,  however,  that  we  who  live  to-day 
should  agree  with  our  predecessors  on  this  or  any  other 
point  of  political  expediency.^  Whatever  the  location  of 
sovereignty  as  a  unit  jnay  have  been  before  the  war,  it  is 
conceivable  that,  now  at  least,  it  should  be  no  longer  held 
by  the  political  peoples  of  the  States  united.  And  if  this 
is  the  case,  there  is  nobody  else  to  hold  it  but  the  person 
or  persons  known  for  the  time  being  as  constituting  a 
National  Government :  because  the  possession  of  sover- 

1  It  is  open  to  foreign  observers,  who  believe  in  this  as  a  principle,  to 
criticize  our  form  of  government  for  not  recognizing  it,  as  does  Mr.  Bage- 
hot  (English  Constitution,  282).  Hut  it  is  very  singular  that  a  writer  like 
Bagc'hot,  as  soon  as  he  looks  at  our  political  structure,  argues  about  it  as  if 
the  possession  of  ultimate  power  could,  witli  us,  be  determined  by  law,  or 
was  not  a  question  of  fact  ujuju  which  all  law  must  depend.  See  ib.  pp. 
281-289. 

-  For  this  position,  Lieber  and  De  Tocqueville,  among  many,  may  be 
cited  as  leading  authorities. 

3  A7ite,  p.  319. 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  52'3 

Mr.  Lincoln's  Address  at  Gettysburg. 

eignty  by  the  peo^^le  as  a  mass  is  nothing  but  an  hypothe- 
sis, and  has  no  political  consequences  whatever,  except  as 
some  person  or  j^ersons  may  succeed  in  using  sovereign 
power  in  the  name  of  such  people.^ 

If  we  are  now  to  conceive  this  doctrine  or  theory  of  our 
national  existence  as  established  by  the  military  success  of 
the  Government  in  the  war  which  closed  in  1865,  it  is 
immaterial  to  the  question  of  present  obligation  whether 
it  is  or  is  not  to  be  recognized  in  history  as  a  revolutionary 
change. 

On  the  dedication  of  the  cemetery  at  Gettysburg,  Mr. 
Lincoln's  simple  and  pathetic  eloquence  declared,  — 

"  The  world  will  little  note,  nor  long  remember,  what  we  say 
here,  but  it  can  never  forget  what  they  did  here.  It  is  for  us,  the 
living,  rather  to  be  dedicated  here  to  the  unfinished  work  that  they 
have  thus  far  so  nobly  carried  on.  It  is  rather  for  us  to  be  here 
dedicated  to  the  great  task  remaining  before  us  —  that  from  these 
honored  dead  we  take  increased  devotion  to  the  cause  for  which 
they  here  gave  the  last  full  measure  of  devotion  —  that  we  here 
highly  resolve  that  the  dead  shall  not  have  died  in  vain  ;  that  the 
nation  shall,  under  God,  have  a  new  birth  of  freedom,  and  that  the 
government  of  the  people,  by  the  peojjle,  and  for  the  people,  shall 
not  perish  from  the  earth." 

From  the  antecedents,  as  well  as  from  the  language,  of 
the  speaker  on  this  occasion,  it  is  known  that  he  regarded 
the  object  of  that  sacrifice  of  life  as  a  noble,  just,  and 
righteous  one,  and  it  must  be  assumed  that,  whether  it 
came  by  the  path  of  revolution,  or  by  that  of  fidelity  to  a 
pre-existing  sovereign,  he  was  ready  to  accept  some  "  gov- 
ernment," or  possession  of  sovereignty,  as  a  fact  estab- 
lished at  the  cost  of  those  labors  and  lives  which  had  thus 
consecrated  the  scene  of  their  last  effort. 

The  question  then  remains  awaiting  an  answer,  What 
is  this   "  government  of  the  people,  by  the  people,  and 

1  Ante,  p.  333. 


524  THE   QUESTION  OF   A  REVOLUTION. 

Unsettled  Questions. 

for  the  people  "  ?  And  this  is  still  the  same  question  it 
was  before,  —  the  question  of  the  definition  of  the  words, 
"  the  people  of  the  United  States." 

It  was  said  in  the  last  presidential  Inaugural  that  "  un- 
settled questions  have  no  pity  for  the  repose  of  nations,"  ^ 
and  no  truer  words,  or  words  more  worthy  of  their  con- 
sideration, could  be  addressed  to  the  American  people.  It 
is  evident  that  there  will  always  be  unsettled  questions  in 
the  daily  life  of  any  nation  ;  and  more  of  such  may  be 
expected  in  new,  growing,  or  developing  countries,  and  in 
the  present  era  of  invention,  progress,  and  free  inquiry. 
As  to  questions  in  respect  to  ordinary  domestic  and  foreign 
policy  and  legislation,  if  they  are  for  a  time  unsettled,  it 
is  at  least  settled  who  the  person  is,  or  who  the  persons 
are,  who  can  settle  them.  But  there  is  a  class  of  questions 
as  to  this  very  point ;  or,  rather,  there  is  this  question  of 
questions,  —  Who  is  it  that  can  settle  unsettled  questions  ? 
and  wherever  there  is  a  nation  for  whom  this  question 
is  unsettled  the  prospect  of  repose  is  very  limited.  Mis- 
erum  est  servitus  uhi  jus  vagum  et  incertum  est,  and  the 
jus  is  always  uncertain  where  the  power  to  declare  what 
shall  be  obe3'ed  as  law  is  uncertain. 

The  desire  for  political  power,  as  incidental  to  all  human 
nature,^  must  be  expected  to  operate  in  this  country,  as 
elsewhere,  whatever  may  be  the  theory  hereafter  accepted, 
—  whether  that  of  a  supreme  government,  assuming  to  rep- 
resent the  nation  as  a  mass,  or,  on  the  other  hand,  that  of 
some  federal  union  of  sovereign  States.  It  must  be  antici- 
pated that  political  parties  will  exist,  in  either  case,  as 

1  March  4,  1881.  The  President  used  the  expression  in  tlie  following 
connection  :  "  If  in  other  lands  it  be  high  treason  to  compass  tlie  death  of 
the  king,  it  should  be  counted  no  less  a  crime  here  to  strangle  our  sovereign 
power,  and  stifle  its  voice.  It  lias  been  said  that  unsettled  questions  have 
no  pity  for  the  repose  of  nations.  It  should  be  said,  with  the  utmost  em- 
phasis, that  tliis  question  of  the  suffrage  will  never  give  repose  or  safety  to 
the  States  of  the  nation  until  each,  within  its  own  jurisdiction,  makes  and 
keeps  the  ballot  free  and  pure  by  the  strong  sanctions  of  the  law." 

2  Aiite,  p.  307. 


THEORY   OF   OUR    NATIONAL    EXISTENCE.  525 

Distinction  in  the  Nature  of  Parties. 

they  exist  at  the  present  day  in  all  civilized  countries,  and 
especially  in  those  having  a  more  or  less  democratic  form 
of  goverriment. 

But  the  contest  between  the  Ins  and  the  Outs  for  the 
control  of  the  administration  of  a  government  is  one  which 
may,  and  ordinarily  does,  go  on  continuously  with  very 
little  attention  from  the  great  majority  of  citizens.  As 
long  as  there  are  no  difficulties  in  the  conception  of  any 
as  to  the  personality  who  is  the  actual  sovereign,  the  indi- 
vidual citizen  can  regard  himself  as  true  to  all  political 
obligation,  whatever  party  may  control  the  administration. 
However  eager  such  parties  may  be  in  the  pursuit  of 
official  power,  and  however  important  the  moral  and  ma- 
terial tendencies  of  their  respective  policies  may  be,  there 
is  a  sense  in  which  it  may  be  said  that  the  repose  of  the 
nation  or  state  is  undisturbed. 

For  the  rivalry  of  such  political  parties  does  not  neces- 
sarily involve  questions  as  to  the  ultimate  seat  of  supreme 
power,  the  forma  imperii^  —  the  possession  of  government 
in  that  sense,  —  the  possession  of  power  above  law.  Politi- 
cal parties  are  supposed  to  contend  for  the  control  of 
government  in  the  lower  and  more  ordinary  sense  of  the 
forma  regiminis,  —  the  administration  of  government  in 
its  several  functions,  —  the  possession  of  power  under 
law.^  In  such  party  contests  there  is  no  question  of 
allegiance  to  a  sovereign.  But  if  a  pohtical  party  aims  at 
effecting  a  change  in  the  actual  seat  of  power,  —  of  power 
above  law,  —  it  acquires  a  revolutionary  character  entirely 
distinct  from  that  of  ordinary  political  parties,  and  in  the 
proportion  that  the  possession  of  ultimate  political  power 
is  involved  in  the  strife  of  contending  factions  it  acquires 
the  character  of  civil  war.^ 

1  Ante,  p.  302. 

2  In  some  countries,  tliough  having  a  republican  or  constitutional  form 
of  government,  the  party  actually  holding  the  administration  may  claina 


526  THE    QUESTION   OF   A   REVOLUTION, 

Relation  of  the  Slavery  Question. 

Whatever  may  be  tlie  moral  responsibility  of  individual 
citizens  attending  either  of  such  conditions  of  political 
strife,  it  is  plain  that  they  cannot,  if  tliey  would,  occupy 
the  same  position  of  indifference  in  reference  to  parties  of 
the  latter  description  which  they  might  in  respect  to  nor- 
mal party  contests  for  administrative  power.  For  as  soon 
as  the  question  of  allegiance  is  involved  in  the  success  of 
one  or  the  other  partv,  even  non-resistance,  as  towards 
one  side,  becomes  criminal,  as  towards  the  other. ^  In  the 
case,  then,  of  such  unsettled  questions  there  is  no  repose 
for  the  nation  or  for  the  citizens ;  because  there  is  no  cer- 
tainty either  as  to  the  duty  to  be  rendered  on  the  one 
hand,  or  the  protection  to  be  received  on  the  other. 

The  question  of  the  actual  location  of  sovereignty  in 
the  hands  of  some  particular  persons,  as  distinguished 
from  some  others,  being  purely  a  question  of  fact,  has  no 
necessary  connection  with  problems  of  political  economy, 
nor  with  any  moral  or  religious  considerations  as  to  the 
right  or  wrong  of  any  particular  social  institutions.  But 
as  slavery  had  always  been  an  institution  resting  on  State 
laws,  and  as  the  doctrine  of  State-sovereignty  and  alle- 
giance to  the  State  had  been  employed  to  justify  secession 
in  the  defence  of  slave-holding  interests,  many  persons 
seem  to  have  persuaded  themselves  that  there  was  an 
intrinsic  connection  between  the  political  doctrine  and  the 
domestic  institution.^  At  least,  they  have  argued  as  if 
the  question  of  political  obligation,  as  between  the  general 

that  it  alone  represents  the  actual  sovereign.  This  has  been  so  often  illus- 
trated in  the  civil  dissensions  of  some  Spanish  American  republics  that  it 
has  acquired,  with  us,  a  distinct  name,  —  the  Mexicani/ation  of  institutions. 
In  such  countries  all  party  contests  have  the  character  of  civil  wars.  The 
same  thing  would  occur  in  this  country,  if  a  party,  on  the  theory  of  a  "  war 
of  ideas,"  should  attempt  to  retain  the  control  of  the  general  Government 
against  the  popular  vote.     Compare  ante,  p.  472,  note. 

1  Compare  tmte,  pp.  98,  503. 

2  Compare  the  extract  from  Mr.  Garfield's  speech,  Aug.  4,  1876,  ante,  p. 
467. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  527 

,    The  Question  not  one  of  Ethics. 

Government  and  the  State,  could  not  have  presented  itself 
to  the  mind  of  the  citizen,  except  in  connection  with  the 
question  whether  the  slavery,  or,  more  generally,  the 
social  and  political  inferiority,  of  descendants  of  African 
negroes  should  be  approved  by  his  individual  conscience.^ 

Having  accustomed  themselves  to  regard  the  powers  of 
the  general  Government  as  the  proper  instrument  for  sus- 
taining their  personal  views  on  this  question,  many  per- 
sons seem  to  assume  that  a  centralized  government  would 
necessarily  promote  any  moral  or  economical  objects  which 
they  may  individually  approve,  and  they  now  congratu- 
late themselves  and  their  fellow-citizens  upon  an  approach- 
ing era  of  peace  and  virtuous  prosperity  under  the  sway 
of  the  prevailing  opinion  of  the  hour,  which  they  take  for 
granted  will  always  be  identified  with  their  own.^ 

But  this  view  eliminates,  not  only  the  original  principle 
in  favor  of  a  distribution  of  the  powers  of  sovereignty, 
but  even  all  idea  of  political  obligation.  It  assigns  to  the 
moral  judgment  of  the  individual  citizen  the  place  which 
can  only  be  occupied  by  a  historical  fact,  —  the  fact  that 
some  person  or  persons  must  be  recognized  as  possessing 
the  supreme  power,  and  as  claiming  the  allegiance  and  obe- 
dience of  the  citizen,  before  right  or  wrong,  in  their  legal 
sense,  can  exist. 


1  For  the  contradiction  of  this  view  given  by  the  history  of  slavery,  com- 
pare ante,  p.  376,  note. 

2  This  way  of  looking  at  the  whole  subject  as  an  issue  depending  on  the 
moral  feeling  of  the  individual  citizen  has  not  been  limited  to  any  one  class 
of  persons.  Compare  mUe,  p.  492,  note,  a  quotation  from  one  of  Mr.  Gar- 
field's speeches.  But  from  the  antecedents  of  those  who  have  most  con- 
spicuously illustrated  it,  it  might  be  called  the  clergyman's  point  of  view  ; 
which,  on  such  a  question,  is  even  more  inadequate  than  the  lawyer's.  {Arite, 
p.  443.)  It  is  evident  that  the  same  sort  of  reasoning  might  at  any  time  be 
used  as  effectually  to  support  State  sovereignty,  to  say  nothing  of  slavery, 
as  it  has  been  by  persons  at  the  South,  of  the  like  clerical  antecedents. 
This  view  is  closely  connected  with  that  confusion  of  law  with  ethics  which 
characterized  so  many  jurists  of  the  last  generation.     Compare  ante,  p.  521. 


528  THE    QUESTION   OF   A   REVOLUTION. 

Necessity  of  the  Question. 

It  was  the  doubt,  uncertainty  or,  rather,  the  absolute 
ignorance  of  the  people  of  this  country  on  this  question  of 
political  fact  which  alone  made  the  civil  war  possible. 
Had  there  been  a  universal  recognition  of  some  sovereign 
to  whom  allegiance  had  been  due  up  to  that  moment, 
either  secession  would  have  been  accepted,  as  matter  of  polit- 
ical faculty  on  the  State  sovereignt}'  theorv,  to  be  followed 
by  international  relations,  peaceful  or  Avarlike,  or  it  could, 
on  some  opposite  theory,  have  been  attempted  only  as 
simple  revolution,  and  been  recognized  as  such.  If  it  had 
taken  this  form  in  the  minds  of  the  Southern  people,  that 
is,  if  they  had  attempted  it  without  a  sense  of  support  in 
the  doctrine  of  State  sovereignty,  the  knowledge  of  this 
on  the  part  of  the  rest  of  the  country,  and  its  recognition 
of  the  movement  as  revolution  pure  and  simple,  would 
have  given  a  different  character  to  the  conduct  of  the  war. 
It  would  have  excluded  entirely  that  idea  of  international 
war,  —  the  idea  of  war  between  the  States  as  such,  —  which, 
at  the  beginning,  palsied  the  energies  of  the  general  Gov- 
ernment, and  invited  foreign  sympathy  with  the  Southern 
cause,  and  which  was  at  the  first,  and  has  ever  since  been, 
a  source  of  division,  bitterness,  and  partisan  bickerings  at 
the  North. 

If  there  is  such  a  thing  as  a  natural  right  of  a  natural 
person  in  civil  society,  it  must  be  the  right  to  know  who 
those  are  who,  as  sovereigns,  actually  hold  power,  for  the 
use  of  which  they  are  responsible  only  to  God  and  their 
own  consciences,  and  who  can  determine  on  the  lives,  lib- 
erty, and  property  of  others,  —  being  answerable  to  none 
other,  unless  by  the  appeal  to  arms. 

The  question  considered  in  this  essay  is,  then,  one  about 
which  every  human  being  standing  on  the  soil  known  in 
geographies  as  the  United  States  of  America,  or  even  hear- 
ing the  name  pronounced  in  any  part  of  the  world,  may 
claim  a  riglit  to  inquire. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  529 

Tlie  Object  of  this  Essay. 

It  is  also  to  be  remembered  that  this  inquiry  is  far  less 
important  as  a  right  than  it  is  as  a  necessity.  It  is,  in- 
deed, a  right  because  it  may  at  any  moment  become  a 
necessity.  Yet,  however  obvious  the  right  may  be,  or 
however  important  to  the  citizen  may  be  the  consequences 
of  not  arriving  at  the  true  answer,  it  is  possible  that  he 
may  sometimes  be  unable  to  find  an  answer,  because  at  a 
loss  as  to  whom  he  shall  inquire  of. 

A  doctrine  of  State-sovereignty,  from  which  the  capac- 
ity of  a  State  to  secede  was  logically  deducible  as  a  polit- 
ical right  independent  of  law  or  written  constitution,  had 
been  asserted,  from  the  earliest  period  of  our  political  ex- 
istence, by  a  large  number  of  persons  eminent  for  learning, 
private  worth,  and  public  services.  They  derived  that  doc- 
trine from  a  view  of  history,  preceding  the  adoption  of  the 
Constitution,^  which  had  been  generally  accepted  in  all 
parts  of  the  country  until  a  time  within  the  memory  of 
persons  still  in  active  life,  and  the  doctrine  itself  was  one 
which  was  also  in  harmony  with  statements  of  elementary 
political  principles,  which,  if  false,  as  they  have  herein 
been  held  to  be,  have  from  the  period  of  the  Revolution 
of  1776  to  the  present  moment  had  almost  universal  cur- 
rency with  the  various  political  schools  known  in  this 
country. 

But,  since  1861,  a  new  history  has  been  put  on  record, 
which  requires  some  theory  of  our  national  existence,  or 
of  the  location  of  sovereignty,  to  be  found  which  shall  not 
only  be  a  consistent  denial  of  all  theories  supporting  a 
right  of  secession,  but  which  shall  be  in  harmony  with  the 
political  action  of  the  Government,  as  recorded  in  that  his- 
tory ;  even  if  such  a  theory  leads  to  the  denial  of  all  the 
elementary  principles  hitherto  accepted. 

It  has  been  the  object  of  this  essay  to  show  that  one  of 
two  conclusions  only,  as  to  our  national  existence,  or  the 

1  Arite,  pp.  99,  100. 


630  THE    QUESTION   OF   A   REVOLUTION. 

The  Alternative  presented. 

location  of  sovereignty,  can  be  reconciled  with  this  new 
history,  namely,  either  — 

That  of  the  supremacy,  in  union,  of  the  States  volun- 
tarily remaining  united  (including  the  doctrine  of  possible 
State-lapse),  of  which  States  in  union  the  government  or- 
ganized under  the  Constitution  is  only  the  agent  ;  or  — 

That  of  the  supremacy  of  a  number  of  persons  compos- 
ing a  "  National  ''  government,  to  whom  the  States  are 
subordinate,  and  on  whom  they  constantly  depend  for  the 
continued  exercise  of  the  powers  "reserved  "  to  them,  as 
expressed  in  the  language  of  the  Constitution. 

Whether  either  one  of  these  conclusions  involves  the 
supposition  of  a  successful  usurpation,  or  of  a  revolution, 
is  not  material  to  the  validity  of  the  above  alternative  ;  be- 
cause, in  any  event,  the  political  occurrences  of  the  last  twenty 
years  are  to  be  accepted  on  some  theory,  —  on  the  theory 
of  a  usurpation  or  a  revolution,  if  none  other  can  be  found.^ 

But  if  we  are  to  judge  from  that  utter  failure  of  all  the 
"  overwhelming  argument  "  produced  before  1861,  —  a  fail- 
ure Avhich  the  "  wager  of  battle  "  proved,  if  it  proved 
nothing  else,^  —  it  is  doubtf id  whether  the  mass  of  citizens 
will  be  able  to  study  out,  each  for  himself,  any  similar 
question  of  political  duty,  if  such  should  hereafter  arise  as 
between  persons  composing  a  National  Government,  claim- 
ing sovereignty  in  the  name  of  the  people  as  a  mass,  and 
the  States,  —  the  organized  political  peoples  of  the  States, 
as  sovereign  in  union. 

The  individual  natural  person  known  either  as  citizen 
or  as  subject  must  decide  the  question  for  himself  and  take 
on  himself  personally  the  responsibility  for  his  decision. 
That  is  to  say,  there  is  no  one  but  the  supreme  power- 
holder  who  can  decide  for  the  individual  citizen  or  subject 
who  that  supreme  power-holder  is.     It  is  always,  in  the 

1  Compare  ante,  pp.  107,  333,  347. 

2  Ante,  p.  89,  note  2. 


THEORY   OF   OUR   NATIONAL   EXISTENCE.  531 

Position  of  the  Legal  Profession. 

last  resort,  a  question  of  force  as  distinguished  from  a 
question  of  law ;  it  is  a  question  of  the  place  of  that  force 
which  is  the  source  of  law,  —  the  sovereign  power  of  law- 
giving ;  1  and  the  question  the  individual  asks  of  himself 
and  of  everybody  else  is,  Who  is  the  person,  or  who  are 
the  persons,  who  will  compel  my  obedience  ?  ^ 

But  it  is  the  essence  of  republics  that  they  are  states  in 
which  the  forma  regiminis,  or  government  in  the  lower 
sense,  is  distinguishable  from  the  forma  imperii^  or  gov- 
ernment in  the  higher  sense. "^  And  in  such  states  the  cit- 
izen or  subject,  when  called  upon  to  recognize  the  supreme 
source  of  law,  even  to  the  extent  of  exposing  his  life  for 
its  defence,  looks  to  those  who  have  assumed  the  duties  of 
the  forma  regiminis^  the  government  in  its  lower  sense,  to 
point  out  to  him  who  he  is  or  who  they  are  whom  they  re- 
gard as  that  supreme  source  of  law,  when  they  assume  the 
right  to  administer  any  law  at  all. 

I  have  in  another  place  noticed  Judge  Joel  Parker's  ani- 
madversions on  a  lecture  by  Judge  Emory  Washburn  be- 
fore the  Harvard  Law  School  in  1864,  which  the  former 
criticized  as  teaching  the  duty  of  the  legal  profession  to 
construe  and  interpret  the  Constitution  thereafter  in  such 
a  way  as  to  effect  a  reorganization  of  the  general  Govern- 
ment, while  still  regarding  it  as  a  government  under  a 
a  written  constitution  as  law.* 

But  perhaps  Judge  Washburn  meant  only  to  indicate 
as  a  fact,  or  as  an  unavoidable  circumstance  incident  to 
the  then  recent  occurrences,  the  fact  which  I  here  wish 
to  point  out,  —  that  the  legal  profession  in  general,  and 
more  particularly  the  judiciar}-  in  all  parts  of  the  country, 
must  be  expected  to  understand  for  themselves,  and  be 
ready  and  willing  to  explain  to  others,  upon  what  theory 
of  the  possession  of  supreme  power  the  action  of  the  gen- 

1  Ante,  p.  97.  2  Ante,  p.  98. 

3  Ante,  p.  302.  *  Ante,  p.  360. 


532  THE   QUESTION  OF   A   REVOLUTIOlSr. 

Why  Political  Power  is  recognized. 

era!  Government  during  and  since  the  war  is  to  be  justified, 
and  whether  justified  upon  the  supposition  of  a  revolution 
having  occurred  since  1861,  or  upon  some  other  view  of 
history.^ 

The  great  majority  of  persons  in  this  country,  as  in 
in  every  part  of  the  world,  desire  first  of  all  to  live  each 
under  his  own  vine  and  fig-tree,  with  none  to  molest  him 
or  make  him  afraid ;  and  each  person  of  average  intelli- 
gence knows  that  for  this  end  there  must  be  some  holder 
of  supreme  political  power,  to  give  him  protection.  The 
mass  of  men  may  all  want  liberty  above  all  things  ;  but 
they  also  know,  practically,  that  whatever  it  may  be  that 
they  call  liberty,  it  must  include  protection  if  the  liberty 
is  something  which  all  can  enjoy.  They  know  that  liberty 
for  one  means  law  for  others,  and,  if  they  did  not  know  it 
before,  an  experience  of  war,  and  especially  of  civil  war, 
tells  them  that  law  means  power,  and  that  power  means 
somebody  holding  power. 

In  short,  with  all  their  love  for  liberty  for  themselves, 
men  want  to  know  who  it  is  whom  they  must  obey,  and 
who  it  is  for  whom  they  may  be  required  to  risk  their 
lives  in  battle  in  order  to  render  that  liberty  secure  under 
his  protection. 

But  the  history  of  this  country,  just  as  much  as  the  his- 
tory of  the  rest  of  the  world,  shows  that  unless  men  can 
recognize  some  such  supreme  power-holder  in  existence, 
whose  ability  to  secure  to  them  liberty  and  protection  is 
brought  to  trial,  they  do  not  gather  together  for  fields  of 
mutual  slaughter. 


1  Tlie  vocation  of  the  legal  profession  is  to  show  the  connection  between 
some  rule  of  action  and  the  will  of  the  political  superior.  But  the  difficulty 
with  these  two  learned  jurists  and  others  has  been  that  they  did  not  see  that, 
though  lawyers  must  profess  to  know  who  that  political  superior  is,  his  ex- 
istence cannot  be  determined  from  the  lawyer's  point  of  view  ;  that  is,  as  a 
question  under  law.    Ante,  pp.  98,  109. 


THEORY   OF   OUR  NATIONAL   EXISTENCE.  533 

The  Question  of  Fact  presented. 

In  point  of  fact,  people  in  general  do  not  take  up  arms 
to  carry  out  abstract  ideas  about  anything,  not  even 
about  government  or  about  the  possession  of  sovereignty. 
The  greater  number  in  every  country  cannot  have  either 
the  leisure  or  the  learning  to  study  abstract  politics,  even 
if  they  had  the  inclination  ;  nor  do  they  regard  any  ab- 
stract political  principles  so  important  that  anybody  should 
be  expected  to  lay  down  life  for  them. 

Whatever  may  be  the  meaning  of  the  words  "  the  gov- 
ernment of  the  people,  for  the  people,  and  by  the  people," 
the  fact  is  that  there  is  no  country  in  the  world  where  any 
considerable  number  of  persons  have  proposed  to  lay  down 
their  lives,  or  see  the  lives  of  their  husbands,  brothers,  or 
sons  laid  down,  that  it  "might  not  perish  from  the  earth." 

The  battle  of  Gettysburg  was  not  fought  for  any  such 
vague  "  idea."  Those  whose  blood  consecrated  the  victory 
on  that  field  fell  to  support  the  authority  of  some  visible 
possessor  of  sovereign  power,  who  asked  the  sacrifice  in 
the  name  of  such  authority. 

It  has  not  been  within  the  scope  of  this  essay  to  ask 
whether  the  written  Constitution  of  the  United  States 
is  or  is  not  a  masterpiece  of  legislative  institution  of  gov- 
ernment ;  nor  have  I  proposed  either  to  advocate  or  oppose 
any  actual  or  possible  investiture  of  sovereign  power,  as 
being,  or  as  not  being,  desirable  in  view  of  the  moral  or 
the  material  interests  of  the  inhabitants  of  this  country. 
I  have  not  even  concerned  myself  with  history,  except  as 
that  may  indicate  a  now-existing  fact ;  and  the  only  thing 
considered  herein  as  the  ultimate  object  of  the  investiga- 
tion has  been.  What  is  the  fact,  the  now-existing  fact, 
about  this  matter  ? 

It  is  possible  enough  that  the  United  States,  such  as  I 
have  supposed  them  to  have  been  before  1861,  or  what- 
ever they  were  when  they  came  into  being  in  1776,  have 
had  their  day,  and  are  things  of  the  past,  to  be  known  here- 


634  THE   QUESTION   OF   A   REVOLUTIOX. 

The  new  Sovereign. 

after  only  as  consigned  to  the  limbo  ^  of  political  vanity, 
and  that  they  have  been  succeeded  by  something  entirely 
different,  though  still,  unfortunately,  bearing  the  same 
name,  which  some  had  long  thought  a  blunder,^  and  which 
now  must  be  regarded  as  a  bore  and  a  nuisance.  For  my 
own  part,  I  am  ready  to  recognize  any  fact  in  the  world,  as 
a  fact.  If  the  fact  is  that  A.,  B.,  or  C.  is  the  actual  su- 
preme power-holder  in  this  country,  I  am  eager  to  know 
and  accept  the  fact ;  and  in  such  a  matter  to  know  and  to 
accept  are  one  and  the  same  thing.^  It  may  be  that  the 
only  persons  to  whom  allegiance  is  now  due  or  will  be  due 
are  the  gentlemen  —  or  hereafter,  perhaps,  the  ladies  and 
gentlemen  —  who  shall  occupy  the  executive,  legislative, 
and  judicial  departments  of  the  government  now  located 
at  Washington.  Or,  it  may  be,  as  seems  far  the  most 
likely,  that  the  legislative  branch  of  the  Goverment  is  the 
approaching  sovereign.  As  soon  as  that  may  be  the  es- 
tablished fact,  I  shall  be  as  read}''  as  any  one  to  cry 
"  Long  live  King  Congress !  "  till  King  Cromwell  come. 

As  long  as  the  question  of  the  actual  seat  of  supreme 
power  —  the  power  from  which  the  Constitution  derives 

1       .     .     "  but  store  hereafter  from  the  earth 
Up  hither  like  aerial  vapors  flew 
Of  all  things  transitory  and  vain,  when  sin 
With  vanity  had  filled  the  works  of  men, 
Both  all  vain  things,  and  all  who  in  vain  things 
Built  their  fond  hopes  of  glory  or  lasting  fame, 
Or  happiness,  in  this  or  in  the  other  life, 

all  these  upwhirl'd  aloft 

Fly far  off 

Into  a  limbo  large  and  broad,  since  called 

The  paradise  of  fools,  to  few  unknown 

Long  after." —  Paradise  Lost,  b.  iii.,  verses  445,  493. 

2  Compare  Dr.  Woolsey's  language,  ante,  p.  120.  "  The  name  '  United 
States  of  America'  is  an  unfortunate  one,  and  lias  doubtless  led  many  minds 
into  error."  Mr.  W.  W.  Story's  letters  to  the  London  Daily  News,  1862; 
pamphlet  "  The  American  Question,"  p.  48. 

3  Compare  ante,  p.  355. 


THEORY   OF   OUR   NATIONAL  EXISTENCE.  535 

Causes  of  the  War  distinguished. 

its  authority  as  law  —  is  an  open  one,  it  will  be  for  the 
American  citizen  to  consider  whether  those  who  demand 
his  co-operation  to  sustain  their  measures  of  government 
are  parties  acting  in  the  legitimate  sphere  of  parties 
under  a  constitution  as  law,  or  are,  in  reality,  contending 
in  behalf  of  some  claimant  of  supreme  power  above  the 
Constitution. 

The  question  which  has  in  this  essay  been  presented  as 
the  essential  subject  of  interest  may  be  novel  to  our  inex- 
perience and  unwelcome  to  our  national  self-complacency  ; 
but  the  difficulty  of  finding  an  answer  to  a  question  of 
that  sort  is  no  novelty  in  the  history  of  the  world,  and  the 
consequences  of  not  finding  for  it  a  ready  answer  are  not 
merely  those  which  have  left  their  record  on  many  a  blood- 
stained field  of  battle. 

Whatever  may  be  the  moral,  economical,  and  social  is- 
ues  which  hereafter  shall  be  regarded  as  "  settled  by  the 
war  "  they  have  had  a  sectional  aspect,  apart  from  any 
connection  with  conflicting  political  theories.  This  was 
caused  by  differences  in  conditions  of  soil-  and  climate, 
which  associated  the  Southern  States  in  their  industrial 
interests  and  social  constitution,  and  consequently  united 
them  in  their  continued  support  of  negro  slavery,  though 
it  was  always  dependent  on  the  legislative  will  of  each 
State  severally. 

It  was  due  to  this  sectional  character  of  the  moral,  eco- 
nomical, and  social  issues  that  the  accidental  occasion  of 
the  war  —  the  causa  causans,  the  slavery  question  —  has 
concealed  almost  entirely  the  causa  sine  qua  non,  the 
doubt  as  to  the  political  duty  of  the  citizen. ^  It  was  this 
which  caused  it  to  appear,  so  far  as  it  has  been  allowed  to 
appear,  as  an  essentially  sectional  issue,  or  one  which  could, 
b}''  itself,  divide  the  country  into  two  sections,  each  com- 

1  Ante,  p.  107. 


536  THE   QUESTION   OF  A  KEVOLUTION. 

Sectional  Aspect  of  the  Civil  War. 

posed  of  contiguous  States,  necessarily  agreeing  in  opinion 
upon  that  political  question.^ 

It  seems  very  improbable  that  the  States  should  ever 
again,  in  consequence  of  any  geographical  conditions,  be 
discriminated  into  sections  so  antagonistic  in  interests 
and,  as  a  consequence,  so  opposed  on  a  question  of  moral 
feeling. 

But  the  question  of  political  allegiance  can  hardly  be 
imagined  as  a  sectional  one,  unless  in  connection  with 
some  issue  equally  dependent  on  geographical  and  material 
conditions.  So  it  may  be  expected,  now  that  the  immedi- 
ate occasion  of  the  war,  the  slavery  question,  is  removed,^ 
that  the  question.  To  whom  is  allegiance  due  by  each  natu- 
ral person  ?  should  receive  a  clearer  recognition  as  one 
essentially  distinct  from  all  sectional  differences. 

It  was  due  to  the  sectional  character  of  the  Rebellion  ^ 
that  the  severance  of  personal  relations  which  was  inci- 
dental to  it,  or  to  the  war  which  grew  out  of  it,  was  more 
like  that  which  occurs  between  the  subjects  of  previously 
friendly  nations,  in  case  of  war,  than  like  that  which  is  an 
ordinary  incident  of  rebellion  and  civil  war.  In  spite  of 
the  bitterness  of  language,  which  was  mainly  due  to  diifer- 
ence  of  feeling  on  the  slavery  question,  the  antagonisms  of 
the  war  did  not,  to  any  great  extent,  reach  down  to  that 
disruption  of  communal,  social,  and  domestic  bonds  which 
is  incidental  to  civil  dissensions  when  the  question  of  loy- 

^  Compare  Mr.  Garfield's  remarks  of  Aug.  4,  1876,  ante,  p.  467. 

2  TJie  question  of  equality  or  inequality  of  races  in  respect  to  the  polit- 
ical capacities  of  the  citizen,  or,  rather,  the  question.  By  what  political 
authority  those  capacities  shall  liereafter  be  determined,  in  the  case  of  any 
inhabitant  of  the  States  ?  remains  as  a  legacy  from  the  reconstruction 
measures,  in  connection  with  the  question  of  a  revolutionary  change  in  the 
seat  of  sovereign  power.     Conq^are  ante,  p.  354. 

^  1  consider  myself  entitled  to  use  this  term,  because,  on  the  theory  pre- 
sented herein,  it  can  be  seen  to  be  rebellion,  though  I  do  not  understand 
bow  it  can  be  called  such  under  any  of  the  theories  popularly  received  at  the 
North. 


THEORY  OF   OUR   NATIONAL  EXISTENCE.  537 

The  Question  which  is  not  sectional. 

alty  or  disloyalty  to  a  visible  personal  sovereign  is  clearly 
recognized  as  the  question  at  issue. 

For  this  question  of  loyalty  to  a  sovereign  is  one  which, 
more  than  any  other,  has  divided  men  in  their  political, 
social,  and  even  domestic  relations.  It  has  severed  them, 
not  merely  as  nation  against  nation,  people  against  people, 
or  state  against  state,  in  their  external  relations,  but,  more 
visibly  and  disastrously,  as  nations,  peoples,  states,  in 
their  internal  relations  ;  dividing  them  in  every  subordi- 
nate organization  of  human  society,  as  the  constituent  mem- 
bers of  provinces,  cities,  towns,  communes,  families,  house- 
holds ;  marshalling  them  against  each  other,  not  as  rival 
political  parties,  but  as  enemies  by  the  law  of  nations, 
under  hostile  banners,  awaiting  the  arbitrament  of  the 
sword.^ 

If  among  the  "  unsettled  questions  "  of  the  present  mo- 
ment the  question  of  the  location  of  ultimate  supreme  power 
is  to  be  included,  it  can  no  longer  be  regarded  as  one  on 
which  a  "  solid  "  mass  of  States  will  be  opposed  by  another 
equally  "  solid  "  mass,  or  as  one  in  which  the  people  of  the 
country  will  be  divided  in  opinion  mainly  as  they  are  also 
divided  by  geographical  or  climatic  distinctions.  If  the 
question,  hereafter,  is  to  assume  the  form  of  a  question  of 
force,  between  those  who  support  a  central  or  National 
government,  claiming  to  represent  the  ultimate  sover- 
eign, and  those  who  support  the  States  as  political  organ- 
izations, sovereign  in  their  union,  the  contest  will  be 
one  dividing  us  as  the  constituent  members  of  States,  cities, 
towns,  communes,  families,  and  even  households.  If,  in 
spite  of  all  the  "  overwhelming  argument "  which  either 

1  This  idea  must  have  presented  itself  to  Mr.  Garfield's  mind  when,  in 
commencing  his  reply  to  Mr.  Long's  proposition  (ante,  p.  498),  he  said,  "  Mr. 
Chairman,  I  should  be  obliged  to  you  to  direct  the  sergeant-at-arras  to  bring 
a  white  flag  and  plant  it  in  the  aisle  between  myself  and  my  colleague 
who  has  just  addressed  you."    88th  Cong.,  let  Sess.,  Globe,  1503. 


538  THE  QUESTION   OF   A   REVOLUTION. 

Position  of  the  Supreme  Court. 

side  can  produce,  the  appeal  is  again  made  to  the  ultima 
ratio  regum  on  the  same  question,  we  shall  then  know 
what  civil  war  really  is. 

If  such  a  day  awaits  us  in  the  future,  the  jurists  and  the 
legal  profession  in  all  its  departments  will  be  as  powerless 
to  decide  the  question  as  they  proved  themselves  to  be  in 
1861. 

The  Supreme  Court  itself  may  then  try  to  raise  its  voice 
above  the  shouts  of  contending  factions,  hoping  to  appear 
on  the  scene  of  fraternal  strife  like  the  heralds  waving  the 
sacred  olive-boughs  between  the  ranks  of  jarring  Grecians  ; 
but  no  court  of  law  can  decide  an  issue  upon  wliich  depends 
the  validity  of  each  justice"'s  commission. 

In  such  a  crisis  of  a  nation's  fate  the  voice  of  the  ju- 
diciary cannot  be  that  of  the  umpire  or  of  the  peace- 
maker :  it  should  rather  be  like  the  sound  of  the  trumpet 
which  summons  one  or  the  other  of  two  armed  hosts  to 
the  onset. 

But  if  that  trumpet  give  an  uncertain  sound,  who  shall 
prepare  himself  to  the  battle  ? 


INDEX. 


Abbott's  Digest,  on  Reconstruction,  211,  n. 

Abstractions,  how  regarded,  163,  n.,  291. 

Adams,  Professor  C.  K.,  on  consolidation  in  France,  336,  n. 
Mr.  H.  B.,  in  N.  Am.  Rev.,  345,  346. 
Mr.  J.  Q.,  on  sovereignty  of  the  people,  124,  n.,  334,  507,  n. 

Aliens,  position  of,  in  civil  war,  191,  193;  confiscation  of  their  prop- 
erty, 179-186. 

Allegiance,  question  of,  stated,  209,  285;  to  whom  due,  357,  n. 

Amendment,  adoption  of  three  new  articles  of,  217,  n. ;  in  connec- 
tion with  reconstruction,  217  ;  possible  change  by,  367;  Revolu- 
tionary construction  of,  371,  383;  as  conditions  of  admission  of 
States,  256,  n. ;  effect  of  the  fourteenth  article  of,  83,  381,  n. ; 
case  under  the  same,  370;  effect  of  the  fifteenth  article  of,  388,  n. 

Amendment  protecting  States  against  suit,  its  history,  138. 

Argyll's  Reign  of  Law  cited,  457,  n.,  459,  n.,  462,  n. 

Attainder,  legislative,  84. 

Austin's  Province  of  Jurisprudence,  cited,  140,  n.,  303,  n.,  322,  n., 
329. 

Bagehot's  The  English  Constitution,  cited,  327,  n.,  522,  n. 

Bateman's  Political  Law,  etc.,  cited,  326,  328,  452. 

Battle,  arbitrament  of,  3,  89,  146,  353,  530. 

Belligerency,  attributed  in  civil  war,  49,  161,  189;  of  confederacy  rec- 
ognized, 56,  57;  judicial  opinions  on,  260. 

Belligerent,  de  facto,  162,  197;  occupation,  177;  government,  156. 

Bemis,  on  Hasty  Recognition,  etc.,  cited,  57,  n. 

Bingham,  Mr.  John  A.,  on  the  Civil  Rights  Bill,  216,  n. ;  on  reconstruc- 
tion measures,  228,  236-244,  259. 

Bishop,  Mr.  J.  P.,  in  Monthly  Law  Reporter,  206,  n.,  270. 

Bismarck,  Prince,  expression  of ,  cited,  96;  his  conversation  with  Gen- 
eral Grant,  488. 

Blaine,  Mr.  James,  on  reconstruction  measures,  229,  239. 

Blockade,  question  of,  in  civil  war,  49,  50. 


640  INDEX. 

Boutwell,  ]Mr.  George  S.,  cited,  221,  n.,  227,  n.,  265,  n.,  272,  n.,  278; 
on  State  suicide,  227,  239;  in  committee  on  reconstruction,  172, 
221,  227;  on  the  Declaration  of  Independence,  4G5,  n. 

Bradley,  Mr.  Justice,  in  Keith  v.  Clark,  29-33,  156,  172,  176,  n.,  300, 
n. ;  in  the  Legal  Tender  cases,  89,  473;  in  United  States  v.  Klein, 
76;  on  State  continuance,  33,  214;  in  the  Slaughter  House  cases, 
373;  in  Collector  v.  Day,  383,  n.;  in  the  Ohio  and  Maryland  Elec- 
tion cases,  388. 

Brightly's  Digest,  on  insurrectionary  States,  66,  n. 

British  Govei'nment's  Proclamation  of  neutrality,  56,  187,  n.,  188,  n., 
207;  notice  of  President  Lincoln's  proclamation,  193,  199. 

Brownson's  American  Republic,  cited,  106,  u.,  117,  n.,  118,  n.,  119.  n., 
121,  n.,  127,  129,  133,  n.,  135,  n.,  145,  n.,  146,  149,  n.,  151,  n., 
154,  n.,  206,  n.,  297,  n. 

Bryce's  Holy  Roman  Empire,  cited,  460,  n.,  475,  n.,  507,  n. 

Buchanan,  President,  his  views  of  the  war,  54,  n. 

Burlamaqui's  theory  of  government,  130,  n. 


Calhoun's  theory,  99 ;  his  position  in  debate  with  Mr.  Webster, 
132,  n. 

Camp's  Democracy,  cited,  291. 

Carlyle  on  the  civil  war,  403. 

Catron,  Mr.  Justice,  in  the  prize  cases,  50. 

Centz,  C.  P.,  "  The  Republic  of  Republics,"  511,  n. 

Chase,  Chief  Justice,  in  Texas  v.  White,  8-15,  87,  128,  347,  442, 
444,  n. ;  in  United  States  v.  Morrison,  53;  in  Merchants'  Bank 
V.  Union  Bank,  53;  Mrs.  Alexander's  cotton,  178,  n. ;  Armstrong's 
foundry,  65;  Keppel's  Adm'r  v.  Petersburg  R.  R.,  52;  Lane  County 
V.  Oregon,  103,  n.,  442;  Georgia  v.  Stanton,  212,  n. ;  Legal  Tender 
cases,  434,  436,  437;  Shortridge  v.  Macon,  78,  80;  United  States  v. 
Klein,  75;  on  contraband  of  war,  184,  185,  196,  n. ;  his  definition 
of  a  State,  9 ;  citation  of  Penhallow  v.  Doane,  129 ;  view  of  the 
party  belligerent,  53;  on  confiscation,  67,  77;  on  the  Emancipation 
Proclamation,  76;  on  treason,  79,  80;  on  the  Fourteenth  Amend- 
ment, 83;  on  State  continuance,  9,  212,  n.,  214,  257;  Mr.  Pom- 
eroy's  I'eference  to  his  view,  442. 

Chase's  Decisions  in  the  Fourth  Circuit,  report  of,  by  B.  F.  Johnson, 
cited,  52,  80,  82,  83,  84,  85,  86,  96,  300,  n. 

Choate,  Rufus,  letter  to  the  Maine  Whigs,  97. 

Cicero,  a  maxim  of,  in  civil  war,  514,  n. 

Civil  war,  as  affecting  neutrals,  188. 

Claims,  cases  in  the  Court  of,  180,  181. 


INDEX.  641 

Clergyman's  point  of  view,  527,  n. 

Clifford,  Mr.  Justice,  in  the  Prize  cases,  50,  61,  n.;  Miller  v.  The 
United  States,  71;  Tyler  v.  Defrees,  73;  Ex  parte  Virginia,  382; 
the  Election  cases,  388,  389;  Tennessee  v.  Davis,  411,  420;  the 
Legal  Tender  cases,  437;  on  belligerency,  61,  n. ;  on  confiscation, 
76-78,  165,  n.,  171. 

Coercion,  of  war  and  of  municipal  law,  distinguished,  502. 

Colonies,  the  American,  in  the  Revolution,  123,  125,  510. 

Confederate  Government  recognized  as  belligerent  by  foreign  powers, 
56,  57;  judicial  presumption  against  its  acts,  7. 

Confederate  States,  status  of,  6,  34,  39;  judicial  presumption  in  favor 
of  their  acts,  6. 

Confiscation  Acts,  principle  of  the,  51,  62,  76,  170-194,  197,  199,  201, 
320;  how  regarded  in  the  Supreme  Court,  51,  n.,  62,  64,  n.,  67,  n., 
79-81. 

Congress,  the  Revolutionary,  315,  n. 

Congress,  theory  of  its  legislative  power  during  the  Rebellion,  197-202; 
future  position  of,  534. 

Congress,  Acts  of,  1861,  July  13,  relating  to  the  blockade,  etc.,  50,  58, 
187,  n.;  August  6,  to  confiscation,  62;  July  20,  July  29,  July  31,  to 
suppression  of  rebellion,  59  ;  1862,  July  2,  July  17,  to  confisca- 
tion, etc.,  59,  60,  62,  79;  1863,  March  3,  to  claims,  185,  n.,  193,  n. ; 
March  12,  to  abandoned  property,  etc.,  59,  62,  67, 185,  n.,  193;  1864, 
July  2,  to  the  same,  59 ;  1865,  March  3,  to  Freedman's  Bureau, 
216,  n. ;  1866,  April  9,  to  civil  rights,  216,  n. ;  1867,  March  2,  to  re- 
construction measures,  23;  July  19,  to  the  same,  40,  59 ;  1868,  June 
22,  to  admission  of  Arkansas  to  representation,  217,  n. ;  June  25,  to 
admission  of  other  States,  217,  n.;  July  27,  to  claims,  193;  1869, 
April  10,  to  admission  of  certain  States,  218;  December  14,  to 
removing  disabilities,  81,  n. ;  1875,  March  1,  to  civil  rights,  380,  385; 
enforcement,  371. 

Congress,  Resolutions  of,  1861,  July  22,  on  the  purposes  of  the  war, 
42,  n. ;  1865,  Feb.  18,  as  to  Tennessee  as  a  rebel  State,  218,  n. ;  1866, 
July  24,  restoration  of  Tennessee  to  representation,  218,  n. ;  1868, 
July  20,  excluding  certain  States  from  representation,  41. 

Conquest  of  States,  doctrine  of,  258,  260,  272. 

Constitution,  the  written,  two  doctrines  of  its  nature,  99,  104;  how 
regarded  as  a  fetish,  95,  305,  321,  339,  n.,  357,  516;  as  a  contract,  100, 
116-118,  122;  as  a  grant  by  the  States,  102;  as  a  law  given  by  one 
people,  103-115;  views  of  the  framers  of,  298,  417;  from  whom 
derived,  141,  296;  its  force  as  law,  306;  construction  of,  in  future 
cases,  368, 

Constitution,  the,  as  fact,  130,  319. 


542  INDEX. 

Constitutions,  their  source,  497. 
Contraband  of  war,  cotton  as,  77, 178,  183. 
Contradictions  in  terms,  some,  enumerated,  90. 
Conway,  Mr.  M.  F.,  speech  of,  in  1861,  260. 
Cooley's  Constitutional  Law,  cited,  359,  n. 

Constitutional  Limitations,  cited,  125,  n.,  132,  n.,   147,  n., 

257,  n.,  509. 
view  of  sovereignty  of  the  people,  106,  n.,  114,  n.,  362,  n. 
Cooley  on  the  Declaration  of  Independence,  509,  n. 
Cox,  Mr.  S.  S.,  in  debate,  500,  n. 
Curtis,  Judge  B.   B,.,    on  executive  power,  75,203;   letter  of,  268; 

theory  of,  271. 
Curtis,  Mr.  G.  T.,his  article  in  Harper's  Magazine,  384;  Discourse  by, 

101,  n.,  103.,  n.,  106,  n.,  115,  n.,  294,  300,  337,  361,  448,  n.  492,  n. ; 

History  of  the  Constitution,  134^  n.,  482,  485;  Life  of  Webster, 

115,  n.,  440,  n.;  Oration,  July  4,  1862,  101,  n. 

Dana,  Mr.  R.  H.,  his  argument  in  the  prize  cases,  169;  on  the  Eman- 
j      cipation  edict,  347;  on  the  supremacy  of  the  general  Government, 

353;  his  edition  of  AVheaton,  see  Wheaton. 
Davis,  Mr.  Jefferson,  indictment  of,  79,  82;  his  Rise  and  Fall  of  the 

Confederate  Government,  511,  n. 
Davis,  Mr.  Justice,  in  United  States  v.   Anderson,  67;  in  Tyler  v. 

Defrees,  72. 
Declaration  of  Independence,  96,  297,  455,  n.,  464,  509. 
De  Maistre,  on  Political  Constitutions,  131,  n. 
Democratic  oligarchy,  descriptive  of  form  of  government,  140,  342. 
De  Tocqueville,  cited,  102,  n.,  291,  n.,  301,  n.,  313  n.,  336,  n. 
Dicey,  Mr.  A.  V.,  letter  to  The  Nation,  330,  n.,  331,  n. 
Doolittle,  Senator,  in  debate,  276,  n.,  282,  n. 
Draper,  Dr.  J.  W.,  History  of  the  Civil  War,  97,  474,  n. 
Duval,  Judge,  in  Ilabicht  v.  Alexander's  Ex'r,  194. 

Eldridge,  Mr.,  in  debate  on  reconstruction,  237,  240. 

Elective  franchise,  political  basis  of,  404-409;  Acts  of  Congress  on, 

386,  n.,  396,  n. 
Emancipation,  proclamation  of,  195,  347,  n.,  519,  n. 
English  view  of  the  civil  war,  56,  299,  496. 

Falck  on  popular  sovereignty,  114,  n. 
Federalist,  cited,  97,  n.,  99,  n.,  132,  303,  n. 
Ferris,  Mr.  A.  F.,  in  North  American  Review,  461,  n. 
Fessendeu,  Senator,  in  debate,  225. 


INDEX.  543 

Fetish  worship,  its  character,  516.. 

Feudal  relations,  no  analogy  with  the  Union,  206. 

Field,  Mr.  Justice,  in  Greathouse's  case,  60;  Miller  v.  United  States, 
71;  Tyler  V.  Defrees,  73;  Williams  v.  Bruffy,  162,  n.,  164;  Wal- 
lack  V.  Van  Riswick,  177,  n. ;  Carlisle  v.  United  States,  185,  n., 
191,  n.;  Spott  v.  United  States,  262,  n. ;  Munn  v.  Illinois,  370; 
The  Election  cases,  398,  n.,  399;  Ex  parte  Virginia,  382;  Tennessee 
V.  Davis,  411;  The  Legal  Tender  cases,  437;  views  on  confiscation, 
76,  78. 

Finck,  Mr.,  in  debate,  244,  n. 

Foot,  Senator,  see  Redfield's  letter  to. 

Force,  the  foundation  of  law,  307,  497,  502. 

Forma  regiminis  smd  forma  imperii,  293,  302,  526. 

Founders  of  the  Constitution,  401,  465,  n. 

Franchise,  see  Elective  franchise. 

Frederick,  of  Prussia,  his  code,  336,  n. 

Frothingham's  Rise  of  the  Republic,  304,  n.,  453,  n.,  509,  n. 

Garfield,  James  A.,  President,  Inaugural  of,  443,  450,  465,  524,  n.; 
remarks  in  Congress,  January  28,  1864,  504;  April  8, '  1864,  498, 
502,  537,  n. ;  January  13,  1865,  487,  n. ;  December  16,  1869,  457,  n.; 
August  4,  1876,  451,  465 ;  March  29,  1879,  466,  n. ;  July  27,  1879, 
463,  n.,  491,  n.  507;  his  position  on  reconstruction,  468;  citation 
of  Pinckney  and  Wilson,  481  ;  on  the  location  of  sovereignty, 
485,  n.,  507. 

Georgia,  existence  of  the  State,  18,  21. 

Government,  action  of,  after  war,  significant,  4;  senses  of  the  word, 
130,  140,  n.,  303;  State,  as  illegal  or  usurping,  149,  n.,  153;  pre- 
sumption as  to  its  acts,  156;  of  the  United  States,  its  tenui-e  of 
power,  131,  303,  341,  363,  n. 

Grant,  General  U.  S.,  conversation  with  Bismarck,  488. 

Green,  Mr.,  argument  of,  in  Davis's  case,  163,  n. 

Grier,  Mr.  Justice,  dissenting  in  Texas  v.  White,  16,  89;  opinion  in 
the  Prize  cases,  17,  n.,  49,  89;  in  the  Legal  Tender  cases,  437;  other 
opinions  by,  17,  159,  169. 

Halleck's  International  Law,  178,  n. 

Hamilton,  Alexander,  on  sovereignty,  122,  n. ;  his  theory  of  govern- 
ment, 402,  n. 

Harlan,  Mr.  Justice,  in  Keith  v.  Clark,  27,  28,  149,  n.;  on  belliger- 
ency, 61,  n. 

Hayes,  President,  message  of,  365,  n.,  399,  n. 

Herder,  a  remark  by,  512,  n. 


544  INDEX. 

Hildreth's  History  of  the  United  States,  138,  n. 

Hillard,  ]\Ir.  George  S.,  in  the  Law  Review,  etc.,  205,  n. 

Ilillebrand,  Karl,  Lectures,  461,  n.,  512,  n. 

Historical  basis  of  sovereignty,  105,  141. 

Historicus,  Letter  of,  in  the  London  Times,  57,  n. 

History,  distinguished  from  doctrine,  99;  variations  in  statement  of, 

99-104. 
House  of  Representatives,  resolutions  of  July  22,  1861,  42,  n. 
Howe,  Senator,  in  debate,  224;  resolutions  offered  by,  255,  273,  n,, 

278,  n.,  281,  n. 
Hughes,  Judge,  decision  by,  174, 
Hurd,  Mr.  Frank  H.,  remarks  by,  488,  n. 
Hypothesis  of  the  people,  114,  440. 

Ideas,  as  law,  278,  n.,  461 ;  as  engaged  in  war,  463. 
Iredell,  Justice,  in  Penhallow  v.  Doane,  10,  n.,  129. 

Jackson,  President,  his  theory  of  the  government,  103,  n. 

Jameson's  Constitutional  Convention,  cited,  106,  n.,  110,  n.,  114,  n., 
127,  n.,  128,  n.,  323,  325,  326,  355,  361,  364,  366,  440,  u.,  474,  n., 
508,  n. 

Jay,  Chief  Justice,  in  Chisholm  v.  Georgia,  122,  n.,  137,  141,  n.,  312, 
329. 

Johnson,  Gen.  Bradley  T.,  see  Chase's  Decisions;  his  view  of  the  war, 
161,  n.,  300,  n. 

Johnson,  President,  his  proclamation  of  April  2,  1866,  39;  his  procla- 
mation of  amnesty,  81 ;  his  theory  of  government,  208 ;  his  refer- 
ence to  Mr.  Lincoln's  proclamation,  57 ;  his  plan  of  reconstruction, 
38,  227,  n.,  2-32,  251,  275,  288,  n. 

Johnson,  Reverdy,  Senator,  remarks  in  debate,  cited,  224,  n.,  231, 
254,  n.,  283. 

Judicial  opinions,  force  of,  generally,  215,  350;  on  the  States  of  the 
Confederacy,  6,  17;  as  possibly  indicating  a  revolution,  368. 

Judiciary,  relation  of,  to  political  questions,  5, 105,  215;  alternative  for, 
107 ;  inconsistent  positions  of,  207. 

Jurist,  the  London,  184,  n.,  205,  n. 

Kent's  statement  of  the  origin  of  the  Constitution,  111,  n. 

Law  and  ethics  distinguished,  515,  n.,  527,  n. 

Law  Magazine,  London,  202,  n.,  312,  n. 

"  Law  of  Freedom  and  Bondage,"  reference  to,  326,  361. 

Laws  of  personal  extent,  424,  n. 


INDEX.  545 

Law,  sovereignty  of,  as  iinproper  term,  96,  97. 

Lawyer's  point  of  view,  when  improper,  109,  211,  n.,  284,  n.,  443. 

Lewis,  Sir  George  Cornewall,  cited,  291. 

Liberty  bell,  its  motto,  465,  n. 

Lieber's  Political  Ethics,  cited,  317,  n.,  331,  n.,  332,  n. ;  Civil  Lib- 
erty, cited,  313,  332,  n.;  Miscellaneous  Writings,  cited,  475,  n., 
518;  views  of  law  and  sovereignty,  521,  n. ;  of  nationalism,  475. 

Lincoln,  President,  his  view  of  States  in  union,  142,  483;  of  States  in 
the  civil  war,  54;  of  treason,  80;  of  attainder,  177;  on  violation  of 
the  Constitution,  514;  his  policy  of  I'econstruction,  35,  36,  149,  n., 

288,  n.;  on  questions  as  abstractions,  288;  on  loyal  people,  149,  n. ; 
other  references  to,  251,  252,  275,  319;  date  of  his  death,  287,  n.; 
his  inaugural,  cited,  98  n.,  143,  n.,  144,  n. ;  his  message,  July  4, 
1861,  cited,  142,  143,  n.,  483;  his  proclamations,  on  the  object  of 
the  war,  April  15,  19,  1861,  54,  55;  on  emancipation,  195,  n., 
201,  n.,  519  n.;  his  letter  to  Colonel  Hodges,  470,  513;  his  Gettys- 
burg address,  523. 

Long,  Mr.,  of  Ohio,  debate  on  his  expulsion,  498. 

Lords,  debate  in  the  House  of,  on  the  President's  proclamation,  193, 

199. 
Loring,  Judge,  in  Collie  v.  The  United  States,  181,  190. 

Mr.  Charles  G.,  his  pamphlet,  cited,  269,  280,  289,  n.,  449,  n. 
Louisiana,  reconstruction  of,  245,  258. 
Lowell,  Mr.    James  R.,  in  the  North  American    Review,  271,  278, 

289,  n.,  302,  n.,  347. 

Loyal  citizens  composing  State,  149,  n.,  252. 
Loyal  Publication  Society,  88,  518,  n. 
Lushington,  Dr.,  cited,  184,  n. 
Lyons,  Lord,  letter  of,  to  Lord  John  Russell,  187,  n. 

Macaulay's  History  of  England,  cited,  233,  469,  n. 

Machiavelli's  principle,  303,  n. 

Macllvaine,  Dr.,  in  the  Princeton  Review,  124,  334. 

Macli.son,  James,  letter  to  Rives,  101,  n.,  104,  n.,  116,  n. ;   letter  to 

Everett,  121,  122;  his  view  of  the  Constitution,  130,  324,  n.,  402  n. ; 

in  the  Federalist,  303,  n.,  402,  n. 
Maine,  Dr.,  on  Ancient  Law,  cited,  507,  n. ;  on  sovereignty,  329,  n., 

462. 
Marsh,  Mr.  George,  P.,  letters  to  The  Nation,  127,  128,  273,  n. 
Marshall,  Ch.  J.,  his  view  of  the  sovereign  people,  312,  n.,  338,  n., 

429  n. ;  his  language  in  Cohens  v.  Virginia,  429 ,  430 ;  his  influence 

on  the  Constitution,  479,  n.;  time  of  his  chief -justiceship,  311,  n. 
Mexicanization,  a  political  term,  525,  n. 


546  INDEX. 

Miller,  Justice,  in  Texas  v.  White,  18;  in  Keith  v.  Clark,  22-26,  155, 
157-159;  in  Armstrong's  foundry,  Gi;  in  Tyler  v.  Defrees,  72;  in 
United  States  v.  Klein,  75;  in  Sprott  v.  The  United  States,  178,  n., 
196,  n.,  201,  n.;  in  the  Slaughter  House  cases,  370,  439,  n.;  in  the 
Legal  Tender  cases,  437. 

Milligan,  Judge,  in  La  Plante's  case,  187,  n. 

Monthly  Law  Reporter,  cited,  206. 

Morgan,  John  T.,  Senator,  in  North  American  Review,  437. 

Morrill,  Lot  C,  Senator,  in  debate  on  military  government,  258,  n. 

Motley,  Mr.  J.  L.,  letter  to  the  London  Times,  507,  n. 

Mulford's,  Dr.,  The  Xation,  cited,  475,  n. 

Nation,  The,  letters  of  Mr.  Marsh  in  the,  273;  of  Mr.  Pomeroy, 
441,  n.;  of  Mr.  Dicey,  330;  citations  from,  342,  n.,  521,  n. 

Nation,  hypothesis  of  the  sovereign,  108,  240,  n.,  361, 
will  of,  how  known,  239,  n. 

National  government,  use  of  the  term,  361. 

Nationalism  as  a  law,  452,  457. 

Nationality,  scientific  basis  of,  98,  n. 

Nebraska,  admission  of  the  State  of,  254,  n. 

Necessity,  argument  from,  201,  513. 

Nelson,  Mr.  Justice,  In  re  Egan,  44,  n.;  in  the  Prize  cases,  50;  in 
Mauran  v.  Ins.  Co.,  50,  n.,  58;  in  Georgia  v.  Stanton,  212. 

Neutrality,  British  proclamation  of.  May  13,  1861,  58,  188  n.,  207. 

Nott,  Judge,  in  Hill's  case,  180,  181,  186-188,  193,  n.  ;  in  Green's 
case,  190,  n. ;  in  Harrison's  case,  194,  n.,  198. 

O'Conoi',  Mr.  Charles,  argument  in  J.  Davis's  case,  84,  163,  n. 

Palmer,  Sir  Roundell,  his  argument,  317. 

Parker,  Joel,  Judge,  his  lectures,  cited,  359,  531;  articles  in  the  North 

American  Review,  203,  267,  n.,  275,  279,  437. 
Parties,  distinction  of  political,  524. 
Passion  for  power  the  foundation  of  government,  307. 
Patterson,  Judge,  in  Penhallow  v.  Doane,  315,  316,  n. 
People,  meaning  of  the  word,  109,  523;   in  the  Constitution,  112;  of 

the  colonies,  125;  idea  of  the  sovereignty  of,  104,  110,  330;  as  a 

mass  not  sovereign,  112;   not  the  authors  of  the  Constitution,  114; 

the  political,  as  States,  125,  126,  132. 
Phillimore's  International  Law,  cited,  121,  n.,  134,  n.,  162,  n.,  187,  n., 

191,  n.,  262,  n.,  317,  n.,  322,  n. 
Pinckney,  Charles  Cotesworth,  his  view  of  the  States,  481. 
Piracy,  President's  proclamation  on,  193;   relation  to  civil  war,  200. 


INDEX.  547 

Political  and  legal  knowledge  distinguished,  124. 

Political  department,  the,  20,  160,  213,  214,  249,  251,  n. 

Pomeroy,  J.  N.,  on  Constitutional  Law,  cited,  110,  n.,  114,  n.,  118,  n., 

124,  n.,  127,  n.,  1:39,  140,  439;  on  the  elective  franchise,  404,409; 

mistaken  as  to  Brownson's  view,  129,  n. ;  reference  to  Rome,  474,  n. ; 

on  the  sovereignty  of  the  nation,  324-328,  334-337;  on  authority  of 

the  Supreme  Court,  352;  his  agreement  with  Chase,  Ch.  J.,  442. 
Postliminy,  effect  of,  178,  195. 
Property  with  hostile  character,  197,  n.,  200. 

Raymond,  Mr.  H.  J.,  remarks  in  Congress,  239,  n. 

Rebellion,  date  of  close  of,  4,  n.  ■ 

against  whom,  151,  354,  n.,  461. 
the  term  justified,  536. 

Reconstruction,  committee  on,  208,  213,  224,  n. ;  report  on,  by  ma- 
jority, 42,  88,  n.,  219,  n. ;  by  minority,  48,  263,  n.;  view  of,  taken 
by  the  Supreme  Court,  213 ;  in  Abbott's  Digest,  211,  n.;  theories 
of,  222,  408;  a  consequence  of,  536,  n. ;  bill  for,  by  H.  W.  Davis, 
37;  a  rejected  bill  for,  221,  n.;  bill  of  March  2,  1867,  220-232; 
action  of  Congress  on,  39-41,  216,  235,  408. 

Reddie,  James,  on  emancipation  by  war  power,  196,  n. 

Redfield,  Judge,  on  the  civil  war,  205,  n.,  272,  n.,  269,  444-449. 

Representatives,  election  for,  see  Elective  franchise. 

Republican  government,  guaranty  for,  in  connection  with  recon- 
struction, 23.5-256;  bills  for,  37,  231,  n. ;  Supreme  Court  on,  249; 
Bradley,  J.,  on,  432,  n. 

Reserved  powers,  114,  131,  363. 

Resolutions,  see  Congress. 

Review,  North  American,  cited,  95,  n.,  178,  196,  n.,  203,  278,  279, 
347,  437,  n.,  461,  n. 

Review,  Princeton,  cited,  124,  334. 

Revolution,  doctrine  of  right  of,  189,  n.,  359,  n.,  498;  how  recognized, 
340,  355;  of  1776,  its  character,  123,  314,  501;  question  of,  since 
1861,  107,  333,  346,  368,  408,  530. 

Rights,  individual,  their  historical  basis,  376;  the  civil,  bill  for,  380. 

Roman  empire,  comparisons  with,  474. 

Russell,  Earl,  on  the  civil  war,  491. 

Secession,  theory  of,  88;  by  what  reasoning  justified,  286;  alternative, 

on  i-esisting  it,  105;  ordinances,  their  effect,  145. 
Shellabarger,  Mr.,  in  debate,  2-32,  247,  258. 
Sherman,  Senator,  in  debate,  231. 
Slavery,  its  relation  to  the  Rebellion,  107,  467,  535;  its  abolition  by 

States,  376,  n. 


618  INDEX. 

Smith,  Mr.  Goldwin,  his  view  of  the  civil  war,  496,  n. 

Social  compact,  influence  of  the  theory,  121,  130,  148,  309,  310. 

Sovereignty,  defined  by  Worcester,  104,  n.;  views  of  its  existence,  96, 
lOG,  507,  n.;  its  possession  above  law,  96,  97,  98,  141,  508;  its  in- 
divisibility in  possession,  96,  107,  120,  141;  its  distribution  in  exer- 
cise, 139,  299,  301;  judicial  views  of,  418;  new  elements  in  the 
question,  105;  always  transferred  by  force,  121;  none  in  individ- 
uals, 122,  124;  prospect  of  the  question  in  the  future,  526;  held  by 
States  in  union,  127,  144,  147;  of  the  people,  theory  of,  140,  330. 

Sprague,  Judge,  in  the  case  of  the  Amy  Warwick,  49,  n.,  166,  189,  n., 
199,n.,263,  268,  271,275. 

Stanbery,  Atty. -General,  argument,  252,  n.,  257,  n. 

State,  definition  of,  by  Chase,  Ch.  Justice,  9;  theory  of  a  loyal,  148, 
157;  corporate  responsibility  in  secession,  148;  status  of,  a  politi- 
cal question,  211,  279,282. 

State  governments,  distinguished  from  States,  121. 

State  rights,  foundation  of  the  doctrine  of,  107. 

State  suicide  or  lapse,  demonstrated  as  fact,  146,  150,  152,  154,  201, 
346;  committee  on  reconstruction  on,  222,  227,  274;  see  Brown- 
son,  Howe,  Sumner. 

States,  the  political  people  of,  recognized,  123. 

States  of  the  Union,  question  of  their  original  sovereignty,  99,  100, 
508;  if  bound  by  contract,.  100;  doctrine  of  grant  by,  102;  not 
under  legal  obligation,  305;  holding  sovereignty  in  union,  103, 
144,  147,  315;  never  severally  sovereign,  131;  origin  of  their  united 
existence,  126,  141,  508;  their  continuance  only  in  voluntary  union, 
103,  132,  135,  136,  141;  recognized  internationally,  317. 

States  of  the  Confederacy,  question  of  their  status,  4,  6,  50,  57,  59,  90; 
recognized  as  belligerents,  50,  56,  57,  59,  170, 192;  doctrine  of  con- 
quest of,  in  report  on  reconstruction,  222,  227,  274 

Stephen,  Sir  James  Fitz  James,  essay  on  Liberty,  etc.,  492-497,  502. 

Stephens,  Mr.  Alexander  H.,  his  course  in  the  war,  88,  n.,  275;  view 
of  sovereignty,  139,  n. ;  History  of  the  War,  208. 

Stevens,  Mi\  Thaddeus,  remarks  in  Congress,  219,  224,  225,  232,  243; 
his  position,  244,  257,  289,  n. ;  on  sovereignty,  433,  n. 

Stickney,  A  True  Republic,  cited,  301,  391. 

Storrs,  Rev.  R.  S.,  Jr.,  centennial  addi-ess,  486,  n. 

Story,  Mr.  Justice,  his  period  on  the  bench,  311,  n. ;  theory  of  the  peo- 
ple as  sovereign,  109,  111,  n.,  440;  decision  in  La  Santissima  Trini- 
dad, 184;  his  theory  of  law,  521 ;  of  the  Declaration  of  Independence, 
501,  n.;  Commentaries,  cited,  96,  n.,  97,  n.,  122,  n.;  histoi'ical  view 
taken  in,  316-328;  on  the  (dectiou  of  representatives,  395,  402,  406. 

Story,  Mr.  W.  W.,  letter  to  the  London  Daily  News,  534,  n. 


INDEX.  649 

strong,  Mr.  Justice,  on  confiscation,  76,  78;  in  Miller  v.  United  States, 
70;  in  Planters'  Bank  v.  Union  Bank,  175,  n.;  in  Munn  v.  Illinois, 
370,  n. ;  in  Tennessee  v.  Davis,  375,  411 ;  in  the  Virginia  cases,  379, 
381,  u. ;  in  the  Legal  Tender  cases,  437. 

Sumner,  Senator,  his  claims  for  legislative  power,  202,  n. ;  resolutions 
offered  by,  265,  n.,  274  ;  his  view  of  State  suicide,  273,  n.,  276,  283. 

Suj)reme  Court  of  the  United  States,  extent  of  its  authority,  350;  con- 
tradictions by,  90;  its  recognition  oi.  sovereignty,  108;  on  the 
divisibility  of  sovereignty,  418;  its  theory  of  the  civil  war,  320; 
doctrine  of  amending  the  Constitution,  383 ;  altei'native  forced  upon 
it,  105,  107;  its  position  in  civil  war,  538. 

Swayne,  Mv.  Justice,  on  the  seceded  States,  215,  256,  n. ;  in  Texas  v. 
White,  18;  in  White  v.  Hart,  18-21,  305;  in  Hickman  v.  Jones, 
51;  in  McVeigh  v.  United  States,  68;  in  the  Slaughter  House  cases, 
374,  413;  in  the  Legal  Tender  cases,  437. 

Taine's  Ancien  Regime,  313,  n.,  314,  n.;  a  remark  by,  509,  n. 

Taney,  Chief  Justice,  in  the  Prize  cases,  50;  in  Dred  Scott's  case,  135; 
a  dictum  of,  253. 

Tennessee,  eastern,  its  status,  163,  n. 

Texas,  existence  of  the  State,  8,  12,  159;  existence  of  its  govern- 
ment, 13. 

Thayer,  'Mx.,  in  debate,  230,  n. 

Tobacco,  as  contraband  of  wai',  178. 

Treason,  question  of,  in  courts  of  law,  60 ;  no  decision  on,  since  the 
Rebellion,  80,  83,  n. ;  contradictory  views  of,  203,  205. 

Treaty  of  Paris,  1783,  133,  n.,  318. 

Tucker's  Blackstone,  147,  n. 

Ultramontane  view  of  government,  139,  n. 

Union,  views  of  its  nature,  87,  88  ;  not  a  name  for  the  general  govern- 
ment, 102 ;  in  what  sense  saved,  490. 

United  States,  name  why  proper,  140;  Dr.  Woolsey  and  W.  W.  Story's 
opinion,  534,  n. ;  not  a  name  for  the  general  government,  102,  440; 
what  are  the,  130,  n.,  151,  297,  305,  497. 

Upshur's  review  of  Story,  501,  n. 

Usurpation,  to  be  accepted  under  alternative,  107,  333,  347,  355. 

Virginia,  resolution  of  the  State  in  1782,  504,  n. ;  in  1879,  on  the  action 
of  Judge  Rives,  90,  n. 
Western,  case  of  the  State,  163,  u. 
Von  Hoist,  cited,  93,  96,  106,  121,  n.,  144,  147,  161,  281,  314;  on  indi- 
visibility of  sovereignty,  96,  106. 


550  INDEX. 

Waite,  Chief  Justice,  in  White  v.  Hart,  18-21;  in  Keith  v.  Clark,  27; 
in  Young  «.  United  States,  178,  182;  in  United  States  u.  Dickel- 
man,  191,  n.,  193,  n. ;  in  Munn  v.  Illinois,  370,  n. ;  in  United  States 
V.  Cruikshank,  377,  n. ;  on' cotton  as  contraband,  77;  on  belligerent 
right  of  a  sovereign  against  rebels,  78;  other  citations  of,  IGO,  164, 
415,  n. 

War,  its  relation  to  political  facts,  2,  354,  n.,  497;  law  of,  for  confisca- 
tion, 174,  197,  288,  n. ;  for  emancipation,  199,  n. ;  in  reconstruction, 
258;  the  civil,  its  causes,  107,  535. 

Washburn,  Judge  Emory,  lecture  by,  360,  531. 

Webster,  Daniel,  works,  cited,  305,  311,  344;  his  theory  of  the  Consti- 
tution, 337,  440,  n. ;  his  argument  in  the  Senate,  96,  n.,  99,  n. ; 
on  the  social  compact,  310;  on  sovereignty,  507;  Mr.  G.  T.  Curtis 
on  his  views,  115,  n.,  272. 

Welling,  Mr.  J.  C,  on  the  emancipation  edict,  196,  n. 

Westbury,  Lord  Chancellor,  cited,  199. 

Wheaton's  International  Law,  cited,  162,  n.,  184;  Dana's  notes  to,. 
165,  n.,  167,  n.,  170,  177,  178,  179,  187,  n.,  191,  198,  203,  206;  Law- 
rence's notes  to,  162,  166,  n.,  184,  n.,  187,  n.,  191,  n.,  196,  n.,  199, 
206,  263,  n. 

Whiting's  War  Powers,  81,  n. 

Williams,  Senator,  in  debate,  223,  224. 

Wilson,  Henry,  Senator,  in  debate,  246,  298,  829;  his  history  of  Recon- 
struction, cited,  214,  n.,  219,  n.,  289. 

Wilson,  James,  Judge,  in  Chisholm  v.  Georgia,  137,  498,  n.;  his  view 
of  States  as  given  by  Mr.  Garfield,  484;  by  Mr.  G.  T.  Curtis,  486. 

Wood,  Sir  W.  Page,  V.  C,  cited,  317,  319. 

Woolsey's  Political  Science,  cited,  102,  n.,  120,  n.,  125,  n.,  137,  n.,  207, 
303,  n.,  305,  n.,  322,  520,  534,  n. 

Wright,  Senator,  in  debate,  238,  n. 

Writers  on  the  civil  war,  452,  456. 

Teaman,  On  Government,  cited,  323. 


University  Press:  John  Wilson  &  Son,  Cambridge. 


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